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San Antonio Court of Appeals Raises Jurisdiction Question in Midst of Will Contest Lawsuit’s Mandamus Appeal

The Sperber San Antonio Will Contest Case Mandamus Appeal.

The Sperber case is a San Antonio will contest case disputed by the decedent’s two children and their San Antonio will contest attorney Jimmy Carter. Following a successful ruling in the trial court for the Plaintiffs (the children) in the In re: Sperber, the Defendant filed an intermediate appeal. In this article, we follow the case and the arguments made by Jimmy Carter against the mandamus appeal from the Plaintiff. The contents of this post are all derived from documents contained in the public record.

Background of Facts of The Sperber Case

Case Overview

The decedent passed away on March 25, 2015. The next day his second wife, the Defendant, offered his January 6, 2015 San Antonio will for probate. This will was attested to by the drafting attorney. Since that time, Plaintiffs, who are the Decedent’s two children – sued their stepmother for her part in changing the Decedent’s life-long estate plan to provide them most of his significant assets upon his death. Plaintiffs also complained in the trial court that the step-mother misappropriated and failed to properly account for significant assets belonging to the estate.

The June 3, 2015 Meeting

On or about August 8, 2016, Plaintiffs noticed the deposition of a CPA (Certified Public Accountant) who participated in a post-death meeting with the defendant, several attorneys, the step-mother’s biological son, and several money managers. During the CPA’s deposition, the defendant’s counsel instructed her not to testify to the substance of a meeting that took place on June 3, 2015 (the “Meeting”).

The Will Contest Mandamus Appeal

“A mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct abuse of discretion. These orders most frequently appear when a part to a suit wants to appeal a judge’s decision.”
Legal Encyclopedia

The facts of this will contest mandamus request present several interesting questions.

  1. Jurisdiction: Whether courts of appeal have jurisdiction to hear mandamus issues in matters involving statutory probate courts during will contest litigation.
  2. The Meeting: Whether the Defendant waived her attorney–client privilege by inviting non-clients to a meeting with her attorney.

The jurisdictional question arose following a Texas Court of Criminal Appeals ruling that questioned the ability of an intermediate court to hear mandamus issues in statutory county courts (and, by analogy, statutory probate courts).

Apparently, as a result of the In re Powell ruling, on April 12, 2017, the San Antonio Court of Appeals issued an order requiring a closer examination of its jurisdictional authority in the mandamus context of a will contest in statutory probate courts.

Arguments Against The Will Contest Mandamus Appeal

Waiver Based on the Presence of Third Parties

The Meeting on June 3, 2015 involved the Defendant’s family and CPA. The Plaintiff argued three compelling points as to why the Meeting should not be privileged from discovery.

  1. The presence of Defendant’s son and the financial advisors effectively waived any attorney/client privilege that could attach to the Meeting.
  2. The presence of third parties at this Meeting caused a waiver of the attorney-client privilege during a will contest, if any, related to the Meeting.
  3. There is no accountant/client privilege in Texas.

The attorney-client privilege protects from disclosure confidential communications between a client and counsel that were made for the purpose of facilitating the rendition of legal services to the client.1 The client can waive the attorney-client privilege during a will contest case if she discloses any significant part of the privileged matter unless such disclosure itself is privileged.2 The presence of a third person typically eliminates the intent for confidentiality on which the privilege rests.

In short, Plaintiffs argued there was no attorney-client privilege in the first place.

Waiver Based on Lack of Diligence

The CPA’s deposition was noticed on August 8, 2016. On August 30, 2016, Defendant’s counsel asserted that the CPA’s testimony was privileged from discovery based on the attorney-client and work-product privileges.

The records containing the notes about the June 3, 2015 Meeting were produced by the money managers in early August 2016. Defendant apparently did not request a copy of these documents from the records service until September 20, 2016. Based on the lack of diligence in asserting privilege, Plaintiffs argued that defendant waived any claim of privilege that could have attached to the June 3, 2015 Meeting.

Waiver Based on Offensive Use

The Plaintiff claimed that the Defendant:

  • Mismanaged the estate
  • Failed to identify or account for estate assets
  • Intentionally took acts to see that Plaintiffs’ inheritance was a fraction of what their father intended

Any assertion of privilege by the step-mother to shield her statements or advice she was given by the persons at the Meeting that would tend to relate to Plaintiffs’ claims is an effective waiver of the privilege because it was being used as a sword instead of a shield and is prohibited under Texas law under the offensive use of privilege doctrine.

“Privilege waived when used as a sword rather than a shield”
Republic Ins. Co. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993)

The relief that step-mother sought from the Court was a finding that she was not liable for anything alleged by Plaintiffs, that her Inventory, Appraisement, and List of Claims was a complete and accurate representation of the estate assets on Decedent’s date of death, and a request that the Court award her fiduciary attorneys’ fees.

Claimants Through the Same Deceased Client

Pursuant to Texas Rule of Evidence 503(d), Plaintiffs argued that any statements at the Meeting by anyone related to Decedent’s capacity to sign a will, to sign his beneficiary designations, or modify his estate plan were not privileged from discovery by Plaintiffs.

Attorneys’ testimony regarding validity of the Will not subject to privilege

When a Texas attorney acts as an attesting witness to a Last Will and Testament, he is not rendering professional legal services. McCormick on Evidence I, supra note 65, § 91, at 221. Tex. R. Evid. 503(d)(4) exempts communications about the document from the attorney-client privilege (it is an exception to the privilege “[i]f the communication is relevant to an issue concerning an attested document to which the lawyer is an attesting witness”).

This exception may be redundant because it applies only to communications made for the purpose of facilitating the rendition of professional legal services. The attorney must testify, just as any other attesting witness, on matters of the validity of the San Antonio will, such as the client’s intent or testamentary capacity/competence/ability to sign a will.4

Although no Texas case directly addresses the existence of such an exception, many other jurisdictions recognize it as do the Texas Rules of Evidence. E.S. Stephens, Annotation, Privilege as to Communications to Attorney in Connection with Drawing of Will, 66 A.L.R.2d 1302. As an attesting witness, Plaintiffs argued that the step-mother’s fiduciary attorney’s testimony related to matters of Decedent’s intent or competence and was not shielded by the attorney-client privilege.

Response for The Mandamus Appeal

The step-mother sought relief from the court of appeals in this Texas will contest. The Plaintiff’s San Antonio will contest lawyer, Jimmy Carter, filed a response on February 16, 2017. The step-mother filed her reply on February 27, 2017. On April 12, 2017, the Court of Appeals determined there was a question as to whether it held jurisdiction over this matter. In an order requesting a briefing on the issues, the Court of Appeals wrote the following:

“On April 5, 2017, the Texas Court of Criminal Appeals issued its opinion in In re Powell, No. WR-85,177-01 (Tex. Crim. App. Apr. 5, 2017). In that opinion, the court held ‘courts of appeals in Texas do not have jurisdiction to issue writs of mandamus against statutory county courts. Id. In this original proceeding now before this court, Relator (the step-mother) is asking that we issue a writ of mandamus against the judge of Bexar County Probate Court Number One, a statutory county court. See TEX. GOV’T CODE ANN. § 25.0171(c)(1) (West Supp. 2016).’ Accordingly, we ORDER Relator to file, on or before April 24, 2017, a response showing cause why this original proceeding should not be dismissed for want of jurisdiction. If Relator fails to satisfactorily respond within the time provided, the original proceeding will be dismissed. See TEX. R. APP. P. 42.3(a), (c).”The Court of Appeals

The outcome of this appeal could have broad implications for Texas will contest litigation and other probate court disputes. On May 8, 2017, the Court of Appeals denied the Writ of Mandamus, therefore holding that it had jurisdiction and validating the trial court’s ruling.

*This page is intended solely for residents of Texas or persons seeking representation in Texas.

1 Tex. R. Evid. 503(b); see Huie v. DeShazo, 922 S.W.2d 920, 922 (Tex. 1996)
2See Tex. R. Evid. 511(1)
3 In re JDN Real Estate-McKinney L.P., 211 S.W.3d 907, 922 (Tex. App.—Dallas 2006, no pet.); see In re Auclair, 961 F.2d 65, 69 (5th Cir.1992) (quoting Hodges, Grant & Kaufmann v. United States Gov’t, 768 F.2d 719, 721 (5th Cir.1985))
4 See In re: Estate of Hardwick, 278 S.W.2d 258, 262 (Tex. Civ. App. – Amarillo 1954, writ ref’d n.r.e.)


James Carter | Texas Will Contest Lawyer

James W. Carter

James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.


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