## Facts

- Shirley Alpha executed a 1997 will drafted by her friend and attorney, Robert S. Pickelner.
- The will devised the residue of Shirley’s estate to Pickelner “to be distributed in accordance with the specific instructions” she had provided him.
- The referenced “specific instructions” were oral only, were not reduced to writing, and did not address all property covered by the residuary devise.
- Evidence suggested Shirley verbally instructed that Pickelner would keep one house and that Ian Hurwitz (a friend) would receive another.
- Shirley died in 1999, unmarried and without children; neither Pickelner nor Hurwitz was related to her or an heir at law.
- David Adler, the independent executor, filed a declaratory-judgment action seeking construction of the will and the effect of the oral-instruction arrangement; Hurwitz intervened.
- Before trial, Pickelner, Hurwitz, and some heirs signed a mediated settlement agreement to divide property, but not all interested heirs signed; neither Pickelner nor Hurwitz asked the court at trial to enforce it.
- After a 2003 bench trial, the probate court declared the devise to Pickelner void and ordered distribution to Shirley’s heirs at law.
- Pickelner moved for a new trial; Hurwitz later sought enforcement of the mediated settlement agreement and requested a constructive trust for a house he claimed Shirley intended him to receive.

## Issues

1. Whether denial of Pickelner’s motion for new trial was reversible error when the trial judge mistakenly referred to the motion as untimely.
2. Whether Hurwitz preserved error and established a basis to enforce a partial mediated settlement agreement that not all interested parties signed.
3. Whether Hurwitz proved grounds for imposing a constructive trust over estate property based on Shirley’s alleged oral instructions.
4. Whether the will created an enforceable testamentary trust or other disposition based on unwritten instructions, or instead failed such that property passed to heirs at law.

## Decision

- The court of appeals affirmed the declaratory judgment distributing the estate to Shirley’s heirs at law.
- The court held there was no reversible error in denying Pickelner’s motion for new trial because the motion was considered and overruled on the merits and the timeliness remark did not affect the ruling.
- The court held the mediated settlement agreement was not enforceable in this proceeding because it was not signed by all interested parties and was not properly presented for enforcement at trial (nor supported by pleadings or trial by consent).
- The court held a constructive trust was not warranted because the record did not establish the equitable predicates required for that remedy.
- The court did not disturb the determination that the will’s attempted trust-like scheme failed and that the attorney-drafter’s sole-beneficiary devise was void as against public policy, with property passing to heirs at law.

## Legal Principles

- A testamentary trust must have sufficiently definite terms and identifiable beneficiaries shown in the will; unwritten, incomplete instructions cannot supply essential trust terms through oral testimony when the instrument is deficient.
- When an attempted express trust fails, equity may impose a resulting trust in favor of the testator’s heirs at law, producing distribution consistent with intestacy principles.
- A dispositive scheme that depends on parol evidence to establish core trust provisions is generally unenforceable when the will itself does not set out those provisions.
- A will drafted by an attorney that makes the attorney the sole (or principal) beneficiary may be voided on public-policy grounds due to conflict-of-interest and undue-influence concerns.
- A mediated settlement agreement affecting estate distribution is not enforceable against non-signatory interested parties and must be properly invoked in the trial court (including appropriate pleadings or consent) to support rendition of judgment.
- A constructive trust is an extraordinary equitable remedy requiring proof of circumstances such as wrongdoing, unjust enrichment, or abuse of a confidential/fiduciary relationship; a mere assertion of an unenforceable oral intent is insufficient.

## Conclusion

The court affirmed a probate declaratory judgment invalidating a will provision that gave the entire estate to the drafting attorney subject to unwritten instructions, refused to enforce a partially executed mediated settlement agreement, and rejected a constructive trust claim, resulting in distribution of the estate to the decedent’s heirs at law.


Pickelner v. Adler, 229 S.W.3d 516 (Tex. App.—Houston [1st Dist.] 2007)