pjc-family-2024-lib

PJC 235.8

E XPRESS T RUSTS

QUESTION 2 Did CONTESTANT bring and maintain the lawsuit in good faith? “Good faith” means an action that is prompted by honesty of intention or a reasonable belief that the action was probably correct. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. Use this submission when there is a provision in a trust that would cause a forfeiture of or void an interest for bringing any lawsuit, including contesting a trust. See Tex. Prop. Code § 112.038(a), which provides that such a trust provision is enforceable unless just cause existed for bringing the lawsuit and the lawsuit was brought and maintained in good faith. For cases brought before September 1, 2011, Property Code section 112.038 provided that the provision is unenforceable if proba ble cause exists for bringing the action and it was brought and maintained in good faith. Acts 2009, 81st Leg., R.S., ch. 414, § 3 (H.B. 1969), eff. June 19, 2009. Source. The definitions of “good faith” and “just cause” are derived from cases under Texas Probate Code section 243 (codified as Tex. Est. Code § 352.052) (will contests). See Ray v. McFarland , 97 S.W.3d 728, 730 (Tex. App.—Fort Worth 2003, no pet.); Collins v. Smith , 53 S.W.3d 832, 842 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The Committee expresses no opinion on whether these definitions are appro priate for use in other contexts. The definition of “probable cause” is adapted from Restatement (Third) of Property § 8.5 cmt. c. (2003).

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