Brown’s guardian ad litem, Wylie, did make comments to the court at the probate hearing, including that she had searched the house and safety deposit box and there was no original in either location. Wylie was not, however, called as a witness in the case. She was not sworn in or subject to cross examination. Thus, these comments were not offered as a witness and unsworn statements by an attorney are not considered evidence. Because Wylie’s statements could not be considered, the only evidence before the court as to the search for the original will was that of Eriks, who testified she did not search for the original and offered no claim that anyone else did either. In light of this, the Humane Society failed to show that the original could not be located after a reasonable search.
Appeal The Humane Society has received extensions to file their Petition for Review with the Texas Supreme Court and the deadline for doing so has not yet passed. An appeal may still be forthcoming. Key Takeaways Most importantly, this case is a reminder of the importance of ensuring the original of an executed will is kept somewhere safe, easy to locate, and that there are people who know where the original will is located. Having all of one’s key legal documents in one place is a critical, but often overlooked, step of the estate planning process. To read more about this, click here . Additionally, this case offers a good reminder that in order for facts to be considered in court, they must be properly offered as admissible evidence. For example, had Wylie been sworn in as a witness and testified, her statements regarding the search for the will could have been considered and weighed by the court. However, without those statements being formally admitted, the court may not consider them in reaching a decision.
Jury Demand
The court also held that the Humane Society failed to preserve its claim that it should have been entitled to a jury trial on the application for appellate review. They participated in the hearing on the probate application without objecting or otherwise indicating that they wished to assert their demand for a jury.
A “Plus-Sized” Win for Royalty Owners in Devon v. Sheppard
“If you can’t understand what your contract means without asking the lawyer who wrote it, you should not be surprised later if judges – who can’t just take your lawyer’s word for it – also have trouble understanding what it means.” – Justice Blacklock 1 As a general rule, a landowner under a Texas oil and gas lease is entitled to royalties from the sale of raw oil and gas produced from the ground, free of drilling and production costs. After oil and gas are brought to the surface, a producer or purchaser will incur additional “post-production” costs. These costs include gathering, transporting, compressing, dehydrating, and otherwise refining the raw oil or gas to create more valuable
and market-ready products. The royalty owner does not share in this added value unless it is specifically contracted for in the lease. Thus, the royalty provision in a typical Texas lease has three essential – and often heavily negotiated – elements: (i) an amount, such as one-fourth, one-fifth, or three-sixteenths; (ii) a valuation method, such as market value, net proceeds, or gross proceeds; and (iii) a valuation point, such as the mouth of the well, the tailgate of the processing plant, or the point of sale. Under what has become known as a “gross proceeds lease,” a royalty owner is typically free
1.) Burlington Res. Oil & Gas Co. LP v. Tex. Crude Energy, LLC, 573 S.W.3d 198 (Tex. 2019).
28
N at i onal A ssociation of D i v i s i on O rder A nalys t s
Made with FlippingBook - professional solution for displaying marketing and sales documents online