In the Estate of Dempsey Johnson, Deceased: The Acceptance of Benefits Doctrine | Matthew Griffeth | Probate Litigation | Farrow-Gillespie Heath Witter LLP

In the Estate of Dempsey Johnson, Deceased: The 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.

Elder Law | Farrow-Gillespie Heath Witter LLP | Dallas, TX

Power of Attorney Liability

A person (“agent”) holding a power of attorney for another person (the “principal”) must act with the utmost degree of loyalty to the principal.  The agent must avoid being involved in any transaction which benefits, or even which potentially benefits, the agent.

That rule of law was enforced once again in 2015 by the Texas courts in Jordan v. Lyles, No. 12-13-0035-CV, 2015 WL 393791 (Tex. App.–Tyler 2015, no pet. h.).

In that case, the agent used her power of attorney to place a significant portion of the principal’s money into pay-on-death accounts naming the agent as the beneficiary.  At the principal’s death, the principal’s other heirs sued the agent for breach of fiduciary duty for moving the money and receiving it at the principal’s death.  A Tyler jury found in favor of the heirs, and held the agent liable for breach of fiduciary duty and tortious interference with inheritance rights. The appellate court affirmed the jury’s verdict.

The moral to agents is this: If you conduct or participate in a transaction for the principal that benefits you personally, obtain bulletproof evidence that the principal instructed you to do so.  If the principal has lost capacity, it is too late; and unless you obtain the advance approval of all beneficiaries under the principal’s will (or all heirs at law if the principal has no will or has a questionable will), you simply may not do anything with the principal’s property during the remainder of the principal’s lifetime that would be to your benefit.

Farrow-Gillespie Heath Witter LLP | Probate Law | Dallas, TX

Dallas County Probate FAQs

Q1:  Can I probate a Will without an attorney?

Unfortunately, no.  The Probate Courts do not allow individuals to appear on behalf of themselves.  For all purposes in Probate Court, you must hire a lawyer.

Q2:  I’ve been appointed as the Executor of a Will.  What am I supposed to do?

A:  The first things you should do are (1) find and secure the original Will; and (2) contact a probate attorney to assist you. Your probate attorney will explain exactly what will happen, and exactly what you need to do.

Q3:  I am the Executor, and I have the original Will.  Why does it need to be probated?  Why can’t I just give away the property according to the Will’s terms?

A: If any of the property to be distributed is held under a “title” — such as a house, vehicle, bank account, or real estate — you need authority from the probate court to transfer that title to the new owner.  By probating the Will, you as Executor obtain the authority (by receiving Letters Testamentary) to legally distribute the decedent’s property and to transfer ownership to the Will’s beneficiaries.

Q4:  What if I want to contest a Will? 

A:  Contact a probate attorney immediately.  If you want to contest a Will, you have a limited time in which to do so; and under the rules of Probate Court, you cannot proceed without the assistance of an attorney.

Q5:  What if the Will doesn’t provide for an independent representation?

A:  If the Will does not provide for an independent representation, or if the Will is otherwise not in order, the process is lengthier, more difficult, and significantly more expensive.  That is why it is important to have a properly drawn-up Will.

Q6:  What if there is no Will?

A:  If there is no Will, and the decedent owned property worth less than $50,000, it is possible to file a “Small Estate Affidavit” to transfer the property.  If the decedent owned property worth more than $50,000, the next of kin (or other close relative) must retain an attorney to have the Probate Court legally declare the names and shares of the decedent’s heirs.

Q7:  All the deceased person owned was his or her home.  Does the Will still need to be probated?

A:  Yes.  Otherwise, it is not possible to maintain the “chain of title” necessary to protect and transfer ownership in the house.  However, an abbreviated and less expensive form of probate is available in Texas when a decedent owns only a home and no other significant property.  The procedure is called a “Muniment of Title.”  Be sure to tell your probate attorney at the initial consultation that you believe the only property in the estate is the decedent’s house.

Q8:  I have looked everywhere for the original of the Will and can’t find it.  What should I do?

A:  It may be possible to probate a copy of the Will.  Also, it may be that the decedent had a safety deposit box to which you do not have access.  We can assist you in finding the box and obtaining a court order to gain access to it.