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Acceptance of Benefits Doctrine

In the Estate of Dempsey Johnson, Deceased: The Acceptance-of-Benefits Doctrine

Acceptance of Benefits Doctrine

In February of 2021, the Texas Supreme Court heard arguments concerning whether a beneficiary of a will has standing to contest the will despite having already accepted benefits under it. In the case, the contestant argued that the “acceptance-of-benefits” doctrine did not bar her claim because she had not accepted all her benefits (under the will or via intestacy), and she therefore retained her standing to challenge the will. In making this argument, the contestant relied on the previous case of Holcomb v. Holcomb, which provided that a contestant may challenge a will if the benefits she accepted are worth less than those to which she is entitled under the challenged will or intestate laws.[1] The Court in Johnson, however, overturned Holcomb and expressly denied contestants the right to take partial benefits under a will while simultaneously bringing a challenge to its validity. The Johnson holding attempted to emphasize that the doctrine enforces the terms of the will and its bequests, not just the value conferred on each beneficiary.

To contest any will, a contestant must have standing as an interested party that is not barred by an affirmative defense. One such affirmative defense is the acceptance-of-benefits doctrine. If the will proponent can show that the contestant accepted benefits, the contestant bears the burden of rebutting that claim.  As the Johnson court explained, “[e]quity does not permit the beneficiary of a will to grasp benefits under the will with one hand while attempting to nullify it with the other.” Thus, a beneficiary is estopped from bringing suit to challenge a will if and when they voluntarily accept any benefit under the will, unless the contest is consistent with the claim that the will is invalid.  It should be noted, then, that if a beneficiary is entitled to some benefit outside the will, accepting such a benefit does not, according to Johnson, preclude that beneficiary from bringing a contest. In other words, if a beneficiary accepts some asset to which they would otherwise be entitled under intestacy, for example, their actions should not be inconsistent with contesting the will, so the contest should be allowed. The Johnson court goes even further and says that accepting something that one would not have legal entitlement to without the bequest cannot be consistent with contesting a will and is thus barred by the acceptance-of-benefits doctrine.[2]  Additionally, the acceptance-of-benefits doctrine requires voluntary acceptance of a benefit. In this way, the beneficiaries are effectively given a choice: they can accept a bequest, implicitly accepting the will’s validity, or they can reject the bequest and bring a contest. There is no option for both. The Johnson court, however, did not elaborate on when an acceptance of benefits is voluntary.

In Johnson one of the decedent’s daughters, Tia MacNerland, was bequeathed a mutual fund account under the will. Importantly, MacNerland would not have been entitled to that account but for the will.  However, the total amount to which MacNerland was entitled under the will was substantially less than what she would have been entitled to if the decedent had died intestate.  After voluntarily receiving the mutual fund account, MacNerland contested the will’s validity, claiming that her father lacked testamentary capacity.  The executor of the estate (another of the decedent’s daughters) successfully argued that the acceptance-of-benefits doctrine applied because MacNerland had already benefitted from the will by accepting the mutual fund account, and the trial court dismissed MacNerland’s contest for lack of standing.

The appellate court, however, reversed the trial court’s holding. Citing Holcomb, it held that the contest was consistent with the acceptance of the mutual fund account and could therefore be brought if the benefits accepted were worth less than those to which MacNerland was entitled under the will or intestacy laws (which they were). 

The Texas Supreme Court, however, did not agree with MacNerland and elected to overturn Holcomb. It held that, because MacNerland accepted the mutual fund account voluntarily, the acceptance-of-benefits doctrine should apply.  This shifted the burden to MacNerland, to show that her acceptance of the mutual fund account—which she admitted was the result of the will and nothing more—was consistent with also invalidating the will.  But since MacNerland had no legal right to the mutual fund account other than through the will, she could not show the requisite consistency needed to maintain the contest. According to the Court, “a beneficiary must firmly plant herself on the side of the will’s validity or invalidity and accept the consequences of that election.” The Texas Supreme Court ultimately agreed with the trial court and dismissed the case for lack of standing under the acceptance-of-benefits doctrine.

Ultimately, the Texas Supreme Court decided that a beneficiary cannot take through a will they also seek to invalidate. Such a result would be inconsistent with the laws surrounding effective wills. A beneficiary “must adopt the whole contents of the instrument, so far as it concerns [her].” Thus, as a general rule, the voluntary acceptance of a benefit through a bequest precludes a beneficiary from bringing a will contest under the acceptance-of-benefits doctrine. 

[1] Holcomb v. Holcomb, 803 S.W.2d 411 (Tex. App.—Dallas 1991, writ denied.).

[2] See Trevino v. Turcotte, 564 S.W.2d 682, 686–87 (Tex. 1978).


Matthew Griffeth is a clerk at FGHW. Mr. Griffeth is a 2022 candidate for a Juris Doctor at SMU Dedman School of Law, where he is the Managing Editor for the International Law Review Association’s Year in Review publication. He holds a B.A. in history from the University of North Texas.

Hemp and CBD legal obstacles

The Legal Obstacles of Hemp and CBD Retail Sale in Texas

Hemp and CBD legal obstacles

Texas has legalized hemp and cannabidiol oils (CBD) this year by passing House Bill 1325 (Texas Hemp Bill). However, the new legislation is not a blanket legalization of hemp products. For example, the bill outlaws all hemp products designed for smoking. The Texas Hemp Bill classifies CBD as a consumable hemp product, making it a food, not a drug or controlled substance. This designation generally means no special license is required to sell products. However, retailers of CBD products must still register with the Texas Department of State Health Services (DSHS). 

The new law provides for significant regulation of CBD, but the required regulations are still under development. For example, the Texas Hemp Bill places extensive labeling and testing requirements on all CBD products. All consumable hemp products that are sold in Texas must be tested for pesticides, heavy metals, harmful microorganisms, and THC concentration. Usually, these tests will be the responsibility of the grower or manufacturer, but retailers are responsible for testing any products which are not tested prior to entering their inventory. A URL linking to each product’s testing information must be on its container along with the name of the manufacturer, a hemp batch identification number, batch date, product name, and certification that the THC concentration is within the legal range. Further, all this information must be located on each unit intended for individual sale. CBD products produced out of state are allowed to be sold in Texas if they were produced legally in that state.

Several significant problems exist, however. For example, none of the policy and procedures to get the required testing or enforce the labeling requirements has been implemented by the State. Until the regulatory framework is in place, there is no practical way for retailers to comply with the requirements or for the state to enforce them.

Among several major enforcement issues, police departments currently lack the equipment to test THC levels in the field. The current field test deployed by most departments in Texas only report the presence of THC, not its concentration. Therefore, in order for police to check if a product is over the legal THC level, they would need to confiscate it and send it to a lab. This could create problems; especially for CBD products coming into Texas from states where marijuana is legal. 

In order to comply with federal law, the Texas Hemp Bill must still be approved by the U.S. Department of Agriculture (USDA). The USDA has stated they will likely not approve any state legislation relating to hemp or CBD until 2020. Federal law explicitly grants the Food and Drug Administration (FDA) full authority to regulate all medical claims related to hemp and CBD and the use of CBD in food and drugs. The FDA is preventing many CBD distributors and producers from making therapeutic claims without an FDA approved study. Further, the FDA is pressuring state health departments to crack down on the sale of CBD food and drink. 

Because it is so new, most of the necessary procedures and regulations needed to run and enforce the Texas Hemp Bill have not yet been implemented. Significant equipment upgrades are needed because, prior to the bill, law enforcement treated CBD the same as marijuana in most cases. DSHS is waiting until the USDA approves the Texas Hemp Bill, to start any implementation. The reasoning is federal law requires the USDA approval before most of the bill can go into effect, and the USDA may require Texas to makes some changes. Until the Texas Hemp Bill is approved by the USDA and the infrastructure to implement the bill is set up, CBD will occupy a grey area in the law.

Farrow-Gillespie Heath Witter provides a full range of business and corporate law services to companies from local start-ups to the Fortune 1000. These business law services include LLC formations, copyright and trademarks, corporate governance, general counsel services, and more.  

Summer Intern Stephen Chance

Stephen Chance was an intern at Farrow-Gillespie Heath Witter, LLP. Mr. Chance is a law student at SMU Dedman School of Law in Dallas, Texas, where he is a Lead Articles Editor for SMU Law Review and the Treasurer of the Student Bar Association. Prior to law school, Mr. Chance taught high school world history in Garland, Texas. He holds a B.A. in Historical Studies from the University of Texas at Dallas.

Recovering Attorney’s Fees in Texas

Many potential litigants believe the prevailing party to a lawsuit is always entitled to recover attorney’s fees from the other side. Contrary to this popular belief, the general rule in our American legal system is that each party must pay its own legal fees, unless a specific rule provides otherwise. Even when the law does provide the right to recover attorney’s fees, specific rules govern the total fees that may be recovered. On April 26, 2019, the Supreme Court of Texas handed down its decision in Venture v. UTSW DVA Healthcare, LLP, which clarifies that there is only one acceptable way to recover attorneys’ fees in Texas courts. The framework for measuring the reasonableness and necessity of attorney’s fees established by Venture is the lodestar method.

The lodestar method requires a fact-finding judge or jury to determine whether the requested amount of attorney’s fees is reasonable and necessary before shifting that cost to the losing party. To be awarded fees, the prevailing party’s attorney must present evidence showing how many hours were spent working on the case and why the rates charged for those hours is reasonable. Venture established the following minimum requirements for attorney fee evidence:

  1. The particular services performed,
  2. The person who performed those services,
  3. The approximate date when the services were performed,
  4. The reasonable amount of time required to perform the services, and
  5. The reasonable hourly rate for each person performing such services.

To satisfy the loadstar requirements, attorneys should maintain contemporaneous billing records on a consistent basis. This practice ensures accurate records of the tasks performed and enhances the likelihood of a successful fee application. Ultimately, keeping well-documented fee records assists clients both in understanding the legal work that is being performed for them and in recovering as much of their legal fees as is possible.

Savannah Judkins | FGHW 2019 Intern

Savannah Judkins participated in Farrow-Gillespie Heath Witter’s 2019 Summer Internship Program. She is a law student at Baylor Law School with an interest in Probate Litigation.

Digital Assets in Estate Planning

Digital Asset Planning

As technology advances over time, the average person owns more and more digital assets. The same applies to businesses too, where the rise of technology also plays a large part in its development. If companies like Salesforce know it’s importance, then it is definintely something worth considering. We doubt technology is going to disappear anytime soon, so using it to our advantage can be very beneficial.

People want to get more assets over this transition and therefore may want to dispose of the old ones, which is why exittechnologies.com is brilliant for the disposal or renewal of your old IT equipment. The definition of digital assets is very broad and includes intangible assets ranging from online accounts, such as bank accounts, email accounts, and social media, to digital files stored on a computer or in the cloud. Traditional estate planning tools have been useful in dealing with comparable non-digital assets, such as by allowing a person’s fiduciary to deal with a bank in person. However, the efficacy of traditional estate planning tools on digital assets is still unclear.

Digital Assets Under Federal Law

While most issues of property disposition are handled by state laws, digital assets are usually controlled at the federal level because of their interstate nature. Original guidance was offered by the Electronic Communications Privacy Act of 1986 (ECPA)’s Stored Communications Act (SCA). The SCA allows digital asset providers to deny access to anyone, but includes a now-abused “lawful consent” exception. The exception is not applied uniformly between states and is therefore unclear and unhelpful.

Digital Assets Under Texas State Law

More recently, twenty-three states have passed the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) in some form, which provides specific guidance on how to distribute digital assets upon death. RUFADAA allows a person’s fiduciary, such as an agent or executor, access to online accounts if the person explicitly grants the power in an estate planning document or through a service provider’s own procedures. RUFADAA also allows the fiduciary to determine how to distribute and manage the assets after the person’s death. RUFADAA was filed in the Texas Legislature on February 21, 2017 for consideration during the 85th Regular Session.

In states that have not passed RUFADAA, planning for the disposition of digital assets remains unclear. Most digital assets will be governed by the user’s licensing agreements, which vary over time and between assets. More certainty will likely arise as these assets become more prevalent.

Estate Planning for Digital Assets

Whether or not the Texas legislature adopts RUFADAA, special considerations for digital assets should be included in every estate plan. The attorneys at Farrow-Gillespie & Heath, LLP understand the issues digital assets present and are prepared to help clients address them in a way that is appropriate for each client’s particular situation.

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About the Author

Catherine Parsley was an intern at Farrow-Gillespie Heath Witter, LLP. Ms. Parsley is a law student at SMU Dedman School of Law in Dallas, Texas, where she is a staff editor of the SMU Law Review. Catherine served as a judicial extern for Chief Justice Nathan L. Hecht, of the Supreme Court of Texas. She holds a B.S. in communications studies, cum laude, from the University of Texas at Austin.

Fooling Mother Nature Requires a Texas License

By Maria Folkerth
July 27, 2016
Maria Folkerth was a summer intern at Farrow-Gillespie Heath Witter LLP.

wxmodSection 301.11 of the Texas Agricultural Code provides that a person must have a license and fill out an application for a permit to modify the weather. Cloud seeding is the most common form of weather modification in the state of Texas.

Cloud seeding is the use of silver iodide or dry ice to create larger clouds that produce more rain[1]. The reason Texans use cloud seeding is to make a good source of water for crops, especially in a drought or throughout dry seasons. Silver iodide copies the ice nuclei that allow water droplets to form. Cloud seeding uses aircraft as well as artillery guns. Aircraft are the most direct and efficient way to seed clouds. Using artillery guns is effective as well; however, that approach does not directly hit the clouds and takes longer to seed.

Cloud seeding is widespread in South and West Texas[2]. The cloud seeding season is from early spring to early fall.

People have tried to use cloud seeding in one other way: hail prevention. Hail is a form of weather that can completely obliterate crops. Farmers in Hale County and Lamb County believed that cloud seeding could also reduce the number of hailstorms. Instead of releasing small amounts of silver iodide into the clouds, they experimentally released larger amounts into clouds before large hail stones were formed. Unfortunately the experiments not only reduced the hail, but also reduced the amount of rain[3].

According to studies conducted, cloud seeding is not harmful to the environment or humans[4]. The main reason for this is that the amount of silver iodide used for cloud seeding is significantly below the 50 micrograms that is allowed per liter of water[5].

There is no discernible difference between normal non-seeded rain and seeded rain.


[1] https://weather.com/science/news/can-we-control-weather-20130616#/1

[2] https://www.tdlr.texas.gov/weather/weathermod.htm

[3] https://tshaonline.org/handbook/online/articles/ymwed

[4] www.weathermodification.org/images/AGI_toxicity.pdf

[5] http://www.wichitafallstx.gov/DocumentCenter/View/21261