## Facts

- Dennis M. Vackar and his wife, Betty, were married for 27 years but had been living apart and estranged for about a year; Dennis was also estranged from their adult son, Dustin.
- Dennis maintained a close relationship with his sister, Magdalen “Maggie” Marbry, who frequently assisted him and was his preferred confidant.
- In July 2007, Dennis suffered a severe spinal-cord injury and was hospitalized with partial paralysis and ventilator dependence.
- While hospitalized, Dennis indicated he wanted Maggie to act for him, executed a statutory durable power of attorney naming her as attorney-in-fact, and asked that she be added to his checking account to handle his affairs.
- Using the power of attorney and at Dennis’s request, Maggie changed the beneficiary of Dennis’s John Alden life-insurance policy (purchased with community funds and thus community property) to herself.
- Dennis later executed a will naming Maggie as sole beneficiary and excluding Betty and Dustin.
- After Dennis’s death, Maggie sought probate of the will; Betty and Dustin contested the will and power of attorney for lack of capacity and undue influence and challenged the life-insurance beneficiary change as an unfair disposition of community property.

## Issues

1. Whether legally and factually sufficient evidence supported the jury’s findings that Dennis lacked testamentary capacity to execute his will and lacked capacity (or was unduly influenced) when executing the statutory durable power of attorney.
2. Whether designating Maggie as beneficiary of a community-funded life-insurance policy was an unfair gift amounting to constructive fraud on the community estate.

## Decision

- The court held the evidence was legally and factually insufficient to support the jury’s lack-of-capacity findings as to the will and durable power of attorney.
- The court reversed the judgment invalidating the will and power of attorney and rendered judgment that both instruments were valid.
- The court affirmed the jury’s finding that the life-insurance beneficiary designation was an unfair gift of community property to a third party and therefore a constructive fraud on the community.
- Disposition: affirmed in part and reversed and rendered in part.

## Legal Principles

- A will contestant bears the burden to prove lack of testamentary capacity, and capacity must be assessed at the time of execution.
- Testamentary capacity requires that the testator understand the act of making a will and its effect, the general nature and extent of property, the natural objects of the testator’s bounty, and the disposition being made.
- Evidence excluded for lack of a proper evidentiary predicate cannot support a sufficiency challenge; an unpreserved objection may permit consideration of otherwise problematic records.
- A surviving spouse makes a prima facie case of constructive fraud by showing community funds were used to acquire life insurance benefiting a person outside the community.
- Once a prima facie case is shown, the burden shifts to the beneficiary to prove fairness, evaluated by: (1) size of the gift relative to the community estate, (2) adequacy of the remainder for the surviving spouse, (3) relationship between donor and donee, and (4) special circumstances justifying the gift.
- Marital estrangement may be relevant to fairness but does not eliminate the spouse’s community-property protections.

## Conclusion

The court reinstated the will and durable power of attorney because the contestants failed to prove incapacity at execution, but it upheld a constructive-fraud finding where a community-funded life-insurance policy was diverted to a third-party beneficiary in a manner deemed unfair to the surviving spouse.


In re Estate of Vackar, 345 S.W.3d 588 (Tex. App.—San Antonio 2011, no pet.)