Preview
CAUSE No. 153-232668-08
VIRGINIA 0. KINSEL, as Attorney-in-Fact for § IN THE DISTRICT COURT
J. FRANK KINSEL, §
J. FRANK KINSEL, JR., Individually, §
CAROLE K. EDWARDS, Individually, and §
CATHERINE K. COLLINS, Individually, §
§
Plaintiffs, §
§
vs. § OFTARRANTCOUNTY, TEXAS
§
JANE 0. LINDSEY, Individually and as §
Co-Trustee of the Lesey B. Kinsel Trust, §
ROBERTN. OLIVER, §
FUNCHESS, MILLS, WHITE, & Co., acting by and §
through its shareholder, TERRY S. WHIDDON §
or any subsequent shareholder as designated §
by the shareholders of FUNCHESS, MILLS, WHITE, §
& Co., as Successor Co-Trustee of the Lesey B. §
Kinsel Trust, §
TERRY S. WHIDDON, as Successor Co-Trustee §
of the Lesey B. Kinsel Trust, and §
FUNCHESS, MILLS, WHITE, & Co., P.C., acting by §
and through its shareholder, TERRY S. WHIDDON, §
or any subsequent shareholder as designated §
by the shareholders of FUNCHESS, MILLS, WHITE, §
& Co. P.C., as Successor Co-Trustee of the Lesey B.§
Kinsel Trust, §
FRANCES GARZA, Individually, and §
IDA CASTILLO, Individually, §
§
Defendants. § 153rd JUDICIAL DISTRICT
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT
To THE HONORABLE COURT:
Plaintiffs VIRGINIA 0. KINSEL -- as Attorney-in-Fact for J. FRANK KINSEL -- J. FRANK
KINSEL, JR.-- Individually-- CAROLE K. EDWARDS-- Individually-- and CATHERINE K. COLLINS
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE I
-- Individually (collectively "Plaintiffs") -- file this Fifth Amended Petition and Suit for
Declaratory Judgment complaining of Defendants JANE 0. LINDSEY-- Individually and as Co-
Trustee of the Lesey B. Kinsel Trust ("Defendant Lindsey")-- ROBERT N. OLIVER-- Individually
("Defendant Oliver") - FUNCHESS, MILLS, WHITE, & Co., acting by and through itsshareholder
TERRY S. WHIDDON or any subsequent shareholder as designated by the shareholders of
FUNCHESS, MILLS, WHITE, & Co., as Successor Co-Trustee of the Lesey B. Kinsel Trust
Agreement ("Defendant FMW") -TERRY S. WHIDDON - as Successor Co-Trustee of the Lesey B.
Kinsel Trust {"Defendant Whiddon") - FUNCHESS, MILLS, WHITE, & Co., P.C., acting by and
through its shareholder TERRY S. WHIDDON or any subsequent shareholder as designated by the
shareholders of FUNCHESS, MILLS, WHITE, & Co., P.C., as Successor Co-Trustee of the Lesey B.
Kinsel Trust Agreement ("Defendant FMW, P.C.") -Frances Garza, Individually ("Defendant
Garza") - and Ida Castillo, Individually ("Defendant Castillo") -- (collectively "Defendants"),
and respectfully show the Court the following:
I.
DISCOVERY LEVEL
1. · Discovery is intended to be conducted under Level 3, Texas Rule of Civil
Procedure 190.4.
II.
VENUE AND JURISDICTION
2. Pursuant to Section 15.002 of the Texas Civil Practice and Remedies Code and
Section 115.002(c) of the Texas Property Code, venue is proper in Tarrant County, Texas,
because Defendants Lindsey and Oliver reside in Tarrant County, Texas, and Tarrant County,
Texas, is the situs in which the administration of the subject Lesey B. Kinsel Trust ("Trust" or
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE2
"Lesey's Trust") has been maintained at times during the four years prior to the filing of this
petition.
3. This Court has jurisdiction over this matter because Plaintiffs seek relief in an
amount and of a character within the jurisdictional limits of this Court. Plaintiffs are named
beneficiaries of the Trust and are, therefore, interested parties. Additionally, Plaintiffs bring
direct actions against Defendants Lindsey and Oliver for undue influence, fraud, conspiracy,
unjust enrichment, constructive trust, and damages.
III.
PARTIES AND TRUST BENEFICIARIES ENTITLED TO NOTICE
4. Plaintiff J. Frank Kinsel is an individual resident of Nueces County, Texas.
Virginia 0. Kinsel -- now acting as J. Frank Kinsel's attorney-in-fact -- brings these claims on
behalf of J. Frank Kinsel. J. Frank Kinsel is the father of J. Frank Kinsel, Jr., and Carole K.
Edwards.
5. Plaintiff J. Frank Kinsel, Jr. is an individual resident of Tarrant County, Texas.
6. Plaintiff Carole K. Edwards is an individual resident ofNueces County, Texas.
7. Plaintiff Catherine K. Collins is an individual resident of Harris County, Texas.
Plaintiff Collins is J. Frank Kinsel's brother's daughter.
8. Defendant Jane 0. Lindsey is an individual resident of Tarrant County, Texas.
Defendant Lindsey has made an appearance in this case. Process should be served on her
through her attorney of record.
9. Defendant Robert N. Oliver is an individual resident of Tarrant County, Texas.
Defendant Oliver has made an appearance in this case. Process should be served on him
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE3
through his attorney of record.
10. Defendant FMW is a Professional Corporation organized and existing under the
laws of the State of Texas. Defendant FMW has been served through Larry L. Mills, C.P.A., its
registered agent.
11. Defendant Whiddon is an individual resident of Jefferson County, Texas.
Defendant Whiddon has been personally served.
12. Defendant FMW, P.C. is a Professional Corporation organized and existing under
the laws of the State of Texas. Defendant FMW, P.C. may be served with process through its
registered agent, Larry L. Mills, C.P.A., 1150 North Eleventh Street, Beaumont, Texas 77702.
13. Defendant Garza is an individual resident of Atascosa County, Texas. Defendant
Garza's exact physical address is unknown, but Plaintiffs believe that she resides off of FM 541
in McCoy, Atascosa County, Texas. Defendant Garza may be served with process at that
location or wherever she may be found. Pursuant to the Court's ruling on Defendant Lindsey's
Plea in Abatement, Defendant Garza may sign a waiver of citation if she so elects. If Defendant
Garza signs a waiver of citation, Plaintiffs will file same with the Court.
14. Defendant Castillo is an individual resident of Atascosa County, Texas.
Defendant Castillo's exact physical address is unknown, but Defendants believe that she resides
off of FM 541 in McCoy, Atascosa County, Texas. Defendant Castillo may be served with
process at that location or wherever she may be found, including at her place of employment
located at 2205 FM 541, McCoy, Texas 78113. Pursuant to the Court's ruling on Defendant
Lindsey's Plea in Abatement, Defendant Castillo may sign a waiver of citation if she so elects.
If Defendant Castillo signs a waiver of citation, Plaintiffs will file same with the Court.
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DE CLARATORY JUDGMENT PAGE4
I 5. The following charitable entities are named as beneficiaries of Lesey' s Trust or
one or more of its amendments or purported amendments: (I) Texas Tech Loyalty Fund, (2) St.
Andrew's Presbyterian Church- Beaumont, Texas, (3) Humane Society of Southeast Texas, and
(4) St. Labre Indian School. Plaintiffs have served the notice required by Section I I5.01 I of the
Texas Property Code on the Office of the Attorney General of the State of Texas. The Texas
Tech Alumni Association, on behalf of the Texas Tech Loyalty Fund, and the St. Labre Indian
School Educational Association have each filed a "Waiver of Service of Process, and Entry of
Appearance." Additionally, the Office of the Attorney General filed a "Waiver" and, pursuant to
same, "has determined not to intervene and by [such] Waiver declines in writing to be a party to
the proceeding in its current state, pursuant to § I23.004(b)(I) of the Property Code." 1
I6. Pursuant to Section II5.013 of the Texas Property Code, the following is a list
naming each beneficiary of Lesey's Trust who has an interest that is affected by the relief
requested by Plaintiffs and a description of the affected interest:
(I) Plaintiff J. Frank Kinsel- The purported Fourth Amendment2 to Lesey's
Trust eliminated the distribution to J. Frank Kinsel of two-twelfths of the
minerals under the Kinsel Ranch. Additionally, the purported Fifth
Amendment to Lesey's Trust eliminated the distribution to J. Frank Kinsel
of certain shares of Atascosa Bank and his share of the Kinsel Ranch, as
more particularly set forth below.
(2) Plaintiff J. Frank Kinsel, Jr. - The purported Fourth Amendment to
Lesey's Trust eliminated the distribution to J. Frank Kinsel of three-
twelfths of the minerals under the Kinsel Ranch. Additionally, the
I In the "Waiver" filed by the Office of the Attorney General, it further stated that "[i]f any pleading is filed herein
which adds additional parties or causes of action, such pleading would constitute a new or additional proceeding
involving a charitable trust, which would require additional notice to the Attorney General pursuant to § 123.003 of
the Property Code. This Waiver is not intended to constitute a declination in writing to be a party to any such
~roceeding."
The Kinsel Ranch and purported amendments to Lesey's Trust are more particularly described below.
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGES
purported Fifth Amendment to Lesey's Trust eliminated the distribution to
J. Frank Kinsel, Jr. of his share of the Kinsel Ranch, as more particularly
set forth below.
(3) Plaintiff Carole K. Edwards - The purported Fourth Amendment to
Lesey's Trust eliminated the distribution to Carole K. Edwards of three-
twelfths of the minerals under the Kinsel Ranch. Additionally, the
purported Fifth Amendment to Lesey's Trust eliminated the distribution to
Carole K. Edwards of her share of the Kinsel Ranch, as more particularly
set forth below.
(4) Plaintiff Catherine K. Collins - The purported Fourth Amendment to
Lesey's Trust eliminated the distribution to Catherine K. Collins of four-
twelfths of the minerals under the Kinsel Ranch. Additionally, the
purported Fifth Amendment to Lesey's Trust eliminated the distribution to
Catherine K. Collins of her share of the Kinsel Ranch, as more particularly
set forth below.
(5) Defendant Jane 0. Lindsey - The purported Fourth Amendment to
Lesey's Trust provided for distribution to Jane 0. Lindsey of one-half of
the minerals under the Kinsel Ranch, as more particularly set forth below.
The purported Fifth Amendment was done to bolster Defendants
Lindsey's and Oliver's argument that Plaintiffs would not be entitled to
anything from the sale of the Kinsel Ranch. Defendant Lindsey was to
receive the residuary ofLesey's Trust.
(6) Defendant Robert N. Oliver - The purported Fourth Amendment to
Lesey's Trust provided for distribution to Robert N. Oliver of one-half of
the minerals under the Kinsel Ranch, as more particularly set forth below.
(7) Texas Tech Loyalty Fund - The purported Fifth Amendment to Lesey's
Trust eliminated the $5,000 distribution to the Texas Tech Loyalty Fund.
(8) St. Labre Indian School - The purported Fourth Amendment to Lesey's
Trust eliminated the $5,000 distribution to the St. Labre Indian School.
(9) Defendant Ida Castillo - The purported Fourth Amendment to Lesey's
Trust increased the distribution to Defendant Castillo from $5,000 to
$10,000.
(10) Defendant Frances Garza- The purported Fifth Amendment to Lesey's
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE6
Trust increased the distribution to Defendant Garza from $5,000 to
$10,000.
The relief requested by Plaintiffs does not affect, in any way, the distributions to the
following beneficiaries of Lesey's Trust: Joe Bob Kinsel, Jr., William Ashley Kinsel, Richard
Bullock, Sue Earl McReynolds, Joe Bullock, Paul A. Prince, Linnie Jo Wyatt, St. Andrew's
Presbyterian Church- Beaumont, Texas, and the Humane Society of Southeast Texas.
IV.
BACKGROUND FACTS PERTINENT TO ALL CLAIMS
17. E.A. Kinsel ("Kinsel Grandfather"), the father of Plaintiff J. Frank Kinsel, long
ago married Lesey Kinsel ("Lesey") as his second wife. In 1943, the Kinsel Grandfather bought
a ranch in Atascosa County, Texas, and named it the Kinsel Ranch. When the Kinsel
Grandfather died in 1979, Lesey owned 50% of the Kinsel Ranch as community property and
was the primary beneficiary of his estate. Through a duly probated will, Lesey was given an
additional 10% so that she owned a 60% undivided interest in the Kinsel Ranch along with most
of the money and property in the Kinsel Grandfather's estate. The remaining 40% of the Kinsel
Ranch was left in equal shares to the Kinsel Grandfather's four children. After the Kinsel
Grandfather's death, Lesey stated repeatedly to Kinsel family members that she would never sell
her interest in the ranch and that her portion of the Kinsel Ranch would go to certain members of
the Kinsel family.
18. On December 16, 1996, Lesey, as part of her estate planning, executed the Lesey
B. Kinsel Trust Agreement ("Lesey's Trust"), and transferred substantially all of her money and
property, including her 60% interest in the Kinsel Ranch, into the Trust. The Trust provided for
certain distributions to be made to charity, other individuals, and to certain members of the
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE 7
Kinsel family with the Kinsel Ranch going to certain Kinsel family members upon Lesey's death,
with any residuary of the Trust to Defendant Lindsey. Defendant Oliver was to receive
$20,000.00. A true and correct copy of Lesey's Trust Agreement is attached hereto as Exhibit
"A." On October 25, 2001, and May 17, 2004, Lesey executed First and Second Amendments,
respectively, to her Trust. On June 18, 2004, Lesey executed a Third Amendment to her Trust
Agreement, a true and correct copy of which is attached hereto as Exhibit "B."
19. Defendant Lindsey is Lesey's niece. Defendant Lindsey is listed as a Successor
Co-Trustee of Lesey's Trust, of which Plaintiffs are beneficiaries. Defendant Oliver is the
nephew of Lesey, the brother of Defendant Lindsey, and lives next door to Defendant Lindsey.
At some point in 2005, Defendants Lindsey and Oliver moved Lesey to Tarrant County, Texas,
to live near them.
20. Over the ensumg two-to-three years, Lesey's mental and physical health
deteriorated dramatically. As of February 2007, Lesey was 94 years-old and under the care of a
physician. She suffered from macular degeneration, rendering her blind so that she was unable
to read. She was weak, often confused, suffered from heart problems, could not read, was taking
different kinds of medications, and hallucinating.
21. On February 23, 2007, Defendants Lindsey and Oliver drove Lesey to the office
of Mr. M. Keith Branyon ("Branyon"), a partner at Jackson Walker, L.L.P. ("Jackson Walker"),
and arranged for Lesey to mark on the signature line of a purported Fourth Amendment to her
Trust ("Fourth Amendment") and a purported Will ("February 23, 2007 Will"). A true and
correct copy of the purported Fourth Amendment is attached hereto as Exhibit "C." The
purported February 23, 2007 Will is more particularly discussed below.
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGES
22. Prior to February 23, 2007, Defendants Lindsey and Oliver had not been left any
interest in the Kinsel Ranch. The purported Fourth Amendment, among other things, purported
to increase Defendants Lindsey's and Oliver's share of Lesey's assets in the Trust by giving
Defendants Lindsey and Oliver equal ownership in the minerals under the Kinsel Ranch upon
Lesey's death. The purported Fourth Amendment also eliminated a $5,000 distribution to the St.
Labre Indian School - a distribution that had been provided for in Lesey's original trust
agreement and the first three amendments to that Trust Agreement.
23. In December 2007, Defendant Lindsey called Virginia Kinsel and said "we have
decided to sell the ranch." After that, in early 2008, Defendant Lindsey represented to Plaintiffs
and others that Lesey did not have sufficient money to fund her care and living expenses, and
that the Kinsel Ranch needed to be sold as a result.
24. In February, 2008, Plaintiff Edwards went to Fort Worth to spend time with Lesey
because Lesey had been sick. While Plaintiff Edwards was in Fort Worth, Plaintiff Edwards and
her sister-in-law, Robin Kinsel, went to Defendant Lindsey's house to discuss with Defendant
Lindsey the reasons why Defendant Lindsey was proposing to sell the Kinsel Ranch. When at
Defendant Lindsey's house, Defendant Lindsey's husband, Bob Lindsey, stated that Lesey had
Alzheimer's disease or dementia and that she would get very confused. While Plaintiff Edwards
was visiting with Lesey during her trip, she realized that Lesey would sometimes not recognize
family members at times whom she had known well. During one of their conversations, Lesey
asked Plaintiff Edwards where Lesey's car was. When Plaintiff Edwards advised Lesey that she
had given her car to Defendant Lindsey two years before, Lesey stated "I know that -- that's
ancient history, but I want to know where my car is!" Also during the visit, one of Lesey's
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE9
caregivers advised Plaintiff Edwards that Lesey would often hallucinate and become confused.
25. In order for the Kinsel Ranch to be sold, Defendants Lindsey and Oliver needed
the consent of the Kinsel family members who owned the combined 40% interests not owned by
Lesey's Trust. On February 19, 2008, Branyon sent Plaintiff J. Frank Kinsel the letter attached
hereto and labeled Exhibit "D." In the letter, on which Defendants Lindsey and Oliver were
"blind carbon-copied," Branyon represented the following:
As you may know, Ms. Kinsel's living expenses, including the
care she receives at her home, have increased substantially of late.
As we have investigated the various possibilities available to her in
raising some additional cash, she has made the decision that she
would like to sell the referenced property in Atascosa County.
On February 26, 2008, Branyon sent another letter to Plaintiff J. Frank Kinsel, a copy of which is
attached hereto as Exhibit "E." In Exhibit "E," Branyon failed to mention Lesey's alleged need
to raise additional money for her care, but stated the following: "I represent Lesey Kinsel and
am not at liberty to discuss any issues regarding her estate planning." Defendants Lindsey and
Oliver were again "blind carbon-copied" on the letter. On February 26, 2008, Branyon also sent
Plaintiff Collins the same letter that he sent to Plaintiff J. Frank Kinsel on that date, a copy of
which is attached hereto as Exhibit "F."
26. Without knowledge of Lesey's actual financial condition and relying on
Defendants Lindsey's and Branyon's false representations that Lesey did not have sufficient
money to fund her care and living expenses, consent was given by the Plaintiffs (and Intervenor)
who owned interests in the Kinsel Ranch so that their Grandmother, Lesey, would be provided
for. Unbeknownst to Plaintiffs, Defendants Lindsey and Oliver used misrepresentations, fraud,
breaches of fiduciary duty, and undue influence to manipulate the sale of the Kinsel Ranch as a
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEIO
part of a scheme and plan to increase the residuary portion of Lesey's estate, which was to go to
Defendant Lindsey, to the detriment of the Plaintiffs. In June, 2008 - the month before
Defendants Lindsey and Oliver had Lesey mark on documents conveying the Kinsel Ranch -
Lesey's Trust had over $1.3 million dollars in a brokerage account, in addition to funds that
Lesey and her Trust had in a checking account and a savings account. Yet, as shown above,
Defendants Lindsey and Oliver and Branyon led Plaintiffs and Intervenor to believe that Lesey-
who was 95 years of age and in extremely poor health- did not have sufficient money to pay for
her living expenses for the rest of her days.
27. On July 9, 2008, Defendant Lindsey called Lesey's physician's office and said she
wanted to obtain a do-not-resuscitate order for Lesey. On July 24, 2008, Defendant Lindsey, in
furtherance of her fraud, completed the sale of the Kinsel Ranch. On August 5, 2008, Lesey was
admitted to the Harris Methodist Hospital emergency room; her doctor was of the opinion that
she had suffered a stroke and was likely to suffer additional strokes. Lesey was released August
6, 2008, but was confused and could not talk. On August 7, 2008, Defendant Lindsey called
Lesey's doctor's office and stated to the nurse that Lesey spent most of her time unconscious and
moaning, and that Defendant Lindsey wanted hospice care for Lesey.
28. On August 12, 2008- only ten days before Lesey's death and only weeks after the
sale of the Kinsel Ranch - when Lesey was gravely ill,had recently had what her physician
believed to be a stroke, had just been released from the hospital, was confused and perplexed,
was often unconscious, was taking narcotic pain relievers, including morphine, was suffering
from vertigo and nutritional deficiencies, and was still suffering from macular degeneration and
unable to read, Defendants Lindsey and Oliver, in furtherance of their plan and scheme, arranged
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE II
to have Lesey mark on the signature line of a purported Fifth Amendment to Lesey's Trust
("Fifth Amendment"). A true and correct copy of the purported Fifth Amendment is attached
hereto as Exhibit "G." The amendment purported to revoke the provisions granting Lesey's
interest in the Kinsel Ranch to certain members of the Kinsel family upon her death. The
amendment also purported to eliminate the $5,000 distribution to the Texas Tech Loyalty Fund
(Texas Tech was Lesey's alma mater). Lesey had over the years contributed to her alma mater
and intended to contribute $5,000 to that fund by way of her Trust and her Will. It also
purported to disown Plaintiff Collins, Lesey's Granddaughter, despite the fact that Lesey had
been adamant, and stated to Defendant Lindsey in Plaintiff Collins's presence, that what Plaintiff
Collins was to receive from Lesey would never be reduced.
29. Defendants Lindsey and Oliver arranged for Lesey to mark on the purported Fifth
Amendment in an apparent effort to "tie up a loose end" in ensuring that that the proceeds from
the sale of the Kinsel Ranch would pass to Defendant Lindsey as residuary beneficiary of
Lesey's Trust. The purported Fourth and Fifth Amendments directly increased Defendant
Lindsey's interest in Lesey's Trust by millions of dollars and Defendant Oliver's interest in
Lesey' s Trust by hundreds of thousands of dollars.
30. Only a few hours after Branyon and Defendants Lindsey and Oliver arranged for
Lesey to mark on the signature line the purported Fifth Amendment to her Trust in August of
2008, Branyon (on that same day) sent the following email to Defendant Lindsey, a copy of
which is attached hereto as Exhibit "H":
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE12
The latest amendment doesn't affect you, and I think it might be a
good idea for me to keep it in my file and not to send anyone
(including you) a copy of it at this point. I can't guarantee that
someone won't try and contest it after Lesey dies. In fact, I expect
it to happen. However, I will be able to keep you out of it, and I
don't anticipate any problems in defeating any contest that may be
filed.
Branyon's above email to Defendant Lindsey underscores, among other things, that Branyon
knew that there was, at the very least, something improper or questionable about the fact that
Lesey marked on the purported Fifth Amendment. If Lesey had the requisite capacity to execute
the purported amendment and had not been unduly influenced to do so, there would be no need
for Branyon to anticipate a contest to that purported amendment.
31. Lesey died only ten days after Defendants Lindsey and Oliver, as part of their
undue influence scheme, fraud, and conspiracy, orchestrated by their counsel, Branyon, had
Lesey place her mark on the signature line of the purported Fifth Amendment -- on August 22,
2008 in Tarrant County, Texas.
32. A chart summarizing the bequests made in Lesey's Trust and its amendments and
purported amendments is attached hereto as Exhibit "I."
33. On August 27, 2008, Lindsey filed an Application for Probate of Will and First
Codicil and Issuance of Letters Testamentary, a true and correct copy of which is attached hereto
as Exhibit "J ," and sought to admit to probate the May 17, 2004 Will of Lesey and the June 18,
2004 Codicil to Lesey's May 17, 2004 Will (collectively "May 17, 2004 Will"), when Branyon
and Defendants Lindsey and Whiddon knew that Lesey marked on another purported Will on
February 23, 2007. Branyon and Jackson Walker represented Defendant Lindsey in filing her
application to probate the May 17, 2004 Will. In that application to probate, Lindsey represented
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEI3
that:
Decedent left a valid written Will ... dated May 17, 2004, which
was never revoked. The Will was modified in a First Codicil ...
dated June 18, 2004. Both documents are being filed herewith. The
subscribing witnesses to Decedent's Will were Mandy McCauley,
whose present residence address is unknown, and Christina Root,
whose present residence address is unknown. The subscribing
witnesses to Decedent's First Codicil were Mandy McCauley,
whose present residence address is unknown, and Christina Root,
whose present residence address is unknown. The Will and Codicil
were made self-proved in the manner prescribed by law.
(Emphasis added).
34. On August 29, 2008, Defendant Lindsey filed a First Amended Application to
probate Lesey's May 17, 2004 Will and in that document again made the representations set
forth in the indented paragraph above. Branyon and Jackson Walker represented Defendant
Lindsey in the First Amended Application.
35. On September 9, 2008, Plaintiffs filed in this Court an Original Petition and
Suit for a Declaratory Judgment and Application for a Temporary Restraining Order against
Defendant Lindsey. 2 Defendant Lindsey was served with the Temporary Restraining Order
("TRO") the following day.
36. Immediately after Defendant Lindsey was served with the TRO, she, without
noti(ving Plaintiffs or their counsel, rescheduled the hearing on her First Amended
Application, which had originally been set for September 25, 2008 at 10:00 a.m., to
September 12, 2008 at 2:00p.m. Plaintiffs assert that Defendant Lindsey rescheduled the
2
Plaintiffs subsequently amended their petition to sue Lindsey, as Successor Co-Trustee ofLesey's
Trust, and Oliver, Individually.Additional defendants have also since been added.
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE14
hearing in an effort to have Defendant Lindsey appointed as Independent Executor ofLesey's
Estate prior to any additional action being taken with regard to the TRO.
37. Immediately prior to the September 12, 2008 hearing, Defendant Lindsey filed
a document entitled "Proof of Death and Other Facts," a true and correct copy of which is
attached hereto as Exhibit "K." In that document, Defendant Lindsey swore under oath that
"[t]he document dated May 17, 2004, now shown to me, which purports to be Decedent's
Will, was never revoked so far as I know. The document dated June 18, 2004, now shown to
me, which purports to be the First Codicil to Decedent's Will, was never revoked, so far as I
know." Branyon and Jackson Walker filed on Defendant Lindsey's behalf this sworn "Proof
of Death and Other Facts."
38. On September 12, 2008, the Court heard evidence in connection with
Lindsey's First Amended Application. Attached hereto as Exhibit "L" is a true and correct
copy of the transcript of that hearing. Plaintiffs respectfully refer the Court to Defendant
Lindsey's sworn testimony set forth in lines 6-25 on page 9, lines 1-25 on page 10, and lines
1-18 on page 11. As shown by such testimony, Defendant Lindsey again swore under oath
that Lesey's May 17, 2004 Will had never been revoked. Branyon and Jackson Walker
represented Defendant Lindsey at the hearing on Defendant Lindsey's First Amended
Application.
39. At the September 12, 2008 hearing, as shown by lines 20-25 on page 6 and
lines 1-9 on page 7 of Exhibit "L," the Court approved the parties' agreement that Defendant
Lindsey would not be appointed as an Executor of Lesey's Estate and that Defendant
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGElS
Whiddon would be appointed as such. The agreement also provided that if Defendant
Whiddon subsequently determined that there was a need to have Defendant Lindsey appointed
as Executor, that Defendant Whiddon would make an application to the Court and notifY
Plaintiffs of such application. After approving the parties' agreement, the Court entered an
order admitting Lesey's May 17, 2004 Will to probate and authorizing Letters Testamentary
to be issued to Defendant Whiddon.
40. On September 26, 2008, Whiddon filed his Oath as Independent Executor of
Lesey's Estate wherein he swore that "the writing which has been offered for probate is the
Last Will and Testament and First Codicil of Lesey B. Kinsel, so far as I know or believe." A
true and correct copy of Defendant Whiddon's Oath is attached hereto as Exhibit "M."
41. Thereafter, on November 3, 2008- almost two (2) months after Lesey's May
17, 2004 Will was admitted to probate - Defendant Lindsey, again represented by Branyon
and Jackson Walker- filed a "Second Amended Application for Probate of Will and Issuance
of Letters Testamentary" ("Second Amended Application"), a true and correct copy of which
is attached hereto as Exhibit "N." In the Second Amended Application, Branyon and
Defendant Lindsey sought to admit to probate an alleged February 23,2007 Will ofLesey and
requested the Court to issue Letters Testamentary to Defendants Lindsey and Whiddon. The
purported February 23, 2007 Will was witnessed by Mr. Colin L. Murchison, an associate
attorney at Jackson Walker, and was notarized by Branyon. Amazingly, the purported
February 23, 2007 Will was allegedly marked on by Lesey on the same day that she marked
on the purported Fourth Amendment to her Trust. Plaintiffs assert that Defendants Lindsey
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEI6
and Oliver used undue influence to manipulate Lesey into marking on the purported February
23, 2007 Will, or, alternatively, that Lesey did not have the capacity to mark on that
document.
42. Defendant Lindsey's, Defendant Oliver's, and Jackson Walker's discovery
responses in his lawsuit conclusively show that Defendant Lindsey, Defendant Oliver,
Defendant Whiddon, Branyon, and Jackson Walker knew of the purported February 23, 2007
Will when the May 17, 2004 Will was admitted to probate and that they (1) failed to advise
Judge Ferchill or Plaintiffs of the purported February 23, 2007 Will prior to the hearing on
Defendant Lindsey's application to probate Lesey's May 17, 2004 Will, (2) testified falsely in
documents filed with the Court concerning Lesey's May 17, 2004 Will, and (3) testified
falsely in open Court concerning Lesey's May 17, 2004 Will. In support, Plaintiffs
respectfully refer the Court to Bates-labeled documents 0184, 3343, and 3345, attached hereto
as Exhibit "0," produced in discovery by Defendant Lindsey and Jackson Walker. The
correspondence attached as Exhibit "0" shows that Branyon and Defendants Lindsey and
Whiddon knew ofthe existence ofLesey's purported February 23,2007 Will when they filed
false documents and affidavits with the probate court and testified falsely in open court.
43. As shown by Exhibit "0," on February 23, 2007, Branyon wrote a letter to
Defendant Whiddon enclosing a copy of the original "Last Will and Testament of Lesey B.
Kinsel" signed that day.
44. On August 20, 2008 -two days before Lesey died- Defendant Lindsey
emailed Branyon and wrote "I also asked if [Defendant Whiddon] had Lesey's will that we
PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEl?
did in your office. I thought I had it, but maybe it wasn't the original. Anyway, I asked him
to send it to you and he said he would." (Emphasis added). The "Wiii" to which Defendant
Lindsey was referring could not have been Lesey's May 17, 2004 Wiii, as that Will was
executed long before Lesey purportedly retained Branyon or Jackson Walker to assist her in
her estate-planning, as shown by Branyon's testimony at the September 12, 2008 hearing. On
August 22, 2008 -just hours after Lesey died- Branyon emailed Defendant Lindsey to ask
who had Lesey' s original "Will," to which Defendant Lindsey responded that Defenda
Preview
CAUSE No. 153-232668-08 VIRGINIA 0. KINSEL, as Attorney-in-Fact for § IN THE DISTRICT COURT J. FRANK KINSEL, § J. FRANK KINSEL, JR., Individually, § CAROLE K. EDWARDS, Individually, and § CATHERINE K. COLLINS, Individually, § § Plaintiffs, § § vs. § OFTARRANTCOUNTY, TEXAS § JANE 0. LINDSEY, Individually and as § Co-Trustee of the Lesey B. Kinsel Trust, § ROBERTN. OLIVER, § FUNCHESS, MILLS, WHITE, & Co., acting by and § through its shareholder, TERRY S. WHIDDON § or any subsequent shareholder as designated § by the shareholders of FUNCHESS, MILLS, WHITE, § & Co., as Successor Co-Trustee of the Lesey B. § Kinsel Trust, § TERRY S. WHIDDON, as Successor Co-Trustee § of the Lesey B. Kinsel Trust, and § FUNCHESS, MILLS, WHITE, & Co., P.C., acting by § and through its shareholder, TERRY S. WHIDDON, § or any subsequent shareholder as designated § by the shareholders of FUNCHESS, MILLS, WHITE, § & Co. P.C., as Successor Co-Trustee of the Lesey B.§ Kinsel Trust, § FRANCES GARZA, Individually, and § IDA CASTILLO, Individually, § § Defendants. § 153rd JUDICIAL DISTRICT PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT To THE HONORABLE COURT: Plaintiffs VIRGINIA 0. KINSEL -- as Attorney-in-Fact for J. FRANK KINSEL -- J. FRANK KINSEL, JR.-- Individually-- CAROLE K. EDWARDS-- Individually-- and CATHERINE K. COLLINS PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE I -- Individually (collectively "Plaintiffs") -- file this Fifth Amended Petition and Suit for Declaratory Judgment complaining of Defendants JANE 0. LINDSEY-- Individually and as Co- Trustee of the Lesey B. Kinsel Trust ("Defendant Lindsey")-- ROBERT N. OLIVER-- Individually ("Defendant Oliver") - FUNCHESS, MILLS, WHITE, & Co., acting by and through itsshareholder TERRY S. WHIDDON or any subsequent shareholder as designated by the shareholders of FUNCHESS, MILLS, WHITE, & Co., as Successor Co-Trustee of the Lesey B. Kinsel Trust Agreement ("Defendant FMW") -TERRY S. WHIDDON - as Successor Co-Trustee of the Lesey B. Kinsel Trust {"Defendant Whiddon") - FUNCHESS, MILLS, WHITE, & Co., P.C., acting by and through its shareholder TERRY S. WHIDDON or any subsequent shareholder as designated by the shareholders of FUNCHESS, MILLS, WHITE, & Co., P.C., as Successor Co-Trustee of the Lesey B. Kinsel Trust Agreement ("Defendant FMW, P.C.") -Frances Garza, Individually ("Defendant Garza") - and Ida Castillo, Individually ("Defendant Castillo") -- (collectively "Defendants"), and respectfully show the Court the following: I. DISCOVERY LEVEL 1. · Discovery is intended to be conducted under Level 3, Texas Rule of Civil Procedure 190.4. II. VENUE AND JURISDICTION 2. Pursuant to Section 15.002 of the Texas Civil Practice and Remedies Code and Section 115.002(c) of the Texas Property Code, venue is proper in Tarrant County, Texas, because Defendants Lindsey and Oliver reside in Tarrant County, Texas, and Tarrant County, Texas, is the situs in which the administration of the subject Lesey B. Kinsel Trust ("Trust" or PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE2 "Lesey's Trust") has been maintained at times during the four years prior to the filing of this petition. 3. This Court has jurisdiction over this matter because Plaintiffs seek relief in an amount and of a character within the jurisdictional limits of this Court. Plaintiffs are named beneficiaries of the Trust and are, therefore, interested parties. Additionally, Plaintiffs bring direct actions against Defendants Lindsey and Oliver for undue influence, fraud, conspiracy, unjust enrichment, constructive trust, and damages. III. PARTIES AND TRUST BENEFICIARIES ENTITLED TO NOTICE 4. Plaintiff J. Frank Kinsel is an individual resident of Nueces County, Texas. Virginia 0. Kinsel -- now acting as J. Frank Kinsel's attorney-in-fact -- brings these claims on behalf of J. Frank Kinsel. J. Frank Kinsel is the father of J. Frank Kinsel, Jr., and Carole K. Edwards. 5. Plaintiff J. Frank Kinsel, Jr. is an individual resident of Tarrant County, Texas. 6. Plaintiff Carole K. Edwards is an individual resident ofNueces County, Texas. 7. Plaintiff Catherine K. Collins is an individual resident of Harris County, Texas. Plaintiff Collins is J. Frank Kinsel's brother's daughter. 8. Defendant Jane 0. Lindsey is an individual resident of Tarrant County, Texas. Defendant Lindsey has made an appearance in this case. Process should be served on her through her attorney of record. 9. Defendant Robert N. Oliver is an individual resident of Tarrant County, Texas. Defendant Oliver has made an appearance in this case. Process should be served on him PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE3 through his attorney of record. 10. Defendant FMW is a Professional Corporation organized and existing under the laws of the State of Texas. Defendant FMW has been served through Larry L. Mills, C.P.A., its registered agent. 11. Defendant Whiddon is an individual resident of Jefferson County, Texas. Defendant Whiddon has been personally served. 12. Defendant FMW, P.C. is a Professional Corporation organized and existing under the laws of the State of Texas. Defendant FMW, P.C. may be served with process through its registered agent, Larry L. Mills, C.P.A., 1150 North Eleventh Street, Beaumont, Texas 77702. 13. Defendant Garza is an individual resident of Atascosa County, Texas. Defendant Garza's exact physical address is unknown, but Plaintiffs believe that she resides off of FM 541 in McCoy, Atascosa County, Texas. Defendant Garza may be served with process at that location or wherever she may be found. Pursuant to the Court's ruling on Defendant Lindsey's Plea in Abatement, Defendant Garza may sign a waiver of citation if she so elects. If Defendant Garza signs a waiver of citation, Plaintiffs will file same with the Court. 14. Defendant Castillo is an individual resident of Atascosa County, Texas. Defendant Castillo's exact physical address is unknown, but Defendants believe that she resides off of FM 541 in McCoy, Atascosa County, Texas. Defendant Castillo may be served with process at that location or wherever she may be found, including at her place of employment located at 2205 FM 541, McCoy, Texas 78113. Pursuant to the Court's ruling on Defendant Lindsey's Plea in Abatement, Defendant Castillo may sign a waiver of citation if she so elects. If Defendant Castillo signs a waiver of citation, Plaintiffs will file same with the Court. PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DE CLARATORY JUDGMENT PAGE4 I 5. The following charitable entities are named as beneficiaries of Lesey' s Trust or one or more of its amendments or purported amendments: (I) Texas Tech Loyalty Fund, (2) St. Andrew's Presbyterian Church- Beaumont, Texas, (3) Humane Society of Southeast Texas, and (4) St. Labre Indian School. Plaintiffs have served the notice required by Section I I5.01 I of the Texas Property Code on the Office of the Attorney General of the State of Texas. The Texas Tech Alumni Association, on behalf of the Texas Tech Loyalty Fund, and the St. Labre Indian School Educational Association have each filed a "Waiver of Service of Process, and Entry of Appearance." Additionally, the Office of the Attorney General filed a "Waiver" and, pursuant to same, "has determined not to intervene and by [such] Waiver declines in writing to be a party to the proceeding in its current state, pursuant to § I23.004(b)(I) of the Property Code." 1 I6. Pursuant to Section II5.013 of the Texas Property Code, the following is a list naming each beneficiary of Lesey's Trust who has an interest that is affected by the relief requested by Plaintiffs and a description of the affected interest: (I) Plaintiff J. Frank Kinsel- The purported Fourth Amendment2 to Lesey's Trust eliminated the distribution to J. Frank Kinsel of two-twelfths of the minerals under the Kinsel Ranch. Additionally, the purported Fifth Amendment to Lesey's Trust eliminated the distribution to J. Frank Kinsel of certain shares of Atascosa Bank and his share of the Kinsel Ranch, as more particularly set forth below. (2) Plaintiff J. Frank Kinsel, Jr. - The purported Fourth Amendment to Lesey's Trust eliminated the distribution to J. Frank Kinsel of three- twelfths of the minerals under the Kinsel Ranch. Additionally, the I In the "Waiver" filed by the Office of the Attorney General, it further stated that "[i]f any pleading is filed herein which adds additional parties or causes of action, such pleading would constitute a new or additional proceeding involving a charitable trust, which would require additional notice to the Attorney General pursuant to § 123.003 of the Property Code. This Waiver is not intended to constitute a declination in writing to be a party to any such ~roceeding." The Kinsel Ranch and purported amendments to Lesey's Trust are more particularly described below. PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGES purported Fifth Amendment to Lesey's Trust eliminated the distribution to J. Frank Kinsel, Jr. of his share of the Kinsel Ranch, as more particularly set forth below. (3) Plaintiff Carole K. Edwards - The purported Fourth Amendment to Lesey's Trust eliminated the distribution to Carole K. Edwards of three- twelfths of the minerals under the Kinsel Ranch. Additionally, the purported Fifth Amendment to Lesey's Trust eliminated the distribution to Carole K. Edwards of her share of the Kinsel Ranch, as more particularly set forth below. (4) Plaintiff Catherine K. Collins - The purported Fourth Amendment to Lesey's Trust eliminated the distribution to Catherine K. Collins of four- twelfths of the minerals under the Kinsel Ranch. Additionally, the purported Fifth Amendment to Lesey's Trust eliminated the distribution to Catherine K. Collins of her share of the Kinsel Ranch, as more particularly set forth below. (5) Defendant Jane 0. Lindsey - The purported Fourth Amendment to Lesey's Trust provided for distribution to Jane 0. Lindsey of one-half of the minerals under the Kinsel Ranch, as more particularly set forth below. The purported Fifth Amendment was done to bolster Defendants Lindsey's and Oliver's argument that Plaintiffs would not be entitled to anything from the sale of the Kinsel Ranch. Defendant Lindsey was to receive the residuary ofLesey's Trust. (6) Defendant Robert N. Oliver - The purported Fourth Amendment to Lesey's Trust provided for distribution to Robert N. Oliver of one-half of the minerals under the Kinsel Ranch, as more particularly set forth below. (7) Texas Tech Loyalty Fund - The purported Fifth Amendment to Lesey's Trust eliminated the $5,000 distribution to the Texas Tech Loyalty Fund. (8) St. Labre Indian School - The purported Fourth Amendment to Lesey's Trust eliminated the $5,000 distribution to the St. Labre Indian School. (9) Defendant Ida Castillo - The purported Fourth Amendment to Lesey's Trust increased the distribution to Defendant Castillo from $5,000 to $10,000. (10) Defendant Frances Garza- The purported Fifth Amendment to Lesey's PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE6 Trust increased the distribution to Defendant Garza from $5,000 to $10,000. The relief requested by Plaintiffs does not affect, in any way, the distributions to the following beneficiaries of Lesey's Trust: Joe Bob Kinsel, Jr., William Ashley Kinsel, Richard Bullock, Sue Earl McReynolds, Joe Bullock, Paul A. Prince, Linnie Jo Wyatt, St. Andrew's Presbyterian Church- Beaumont, Texas, and the Humane Society of Southeast Texas. IV. BACKGROUND FACTS PERTINENT TO ALL CLAIMS 17. E.A. Kinsel ("Kinsel Grandfather"), the father of Plaintiff J. Frank Kinsel, long ago married Lesey Kinsel ("Lesey") as his second wife. In 1943, the Kinsel Grandfather bought a ranch in Atascosa County, Texas, and named it the Kinsel Ranch. When the Kinsel Grandfather died in 1979, Lesey owned 50% of the Kinsel Ranch as community property and was the primary beneficiary of his estate. Through a duly probated will, Lesey was given an additional 10% so that she owned a 60% undivided interest in the Kinsel Ranch along with most of the money and property in the Kinsel Grandfather's estate. The remaining 40% of the Kinsel Ranch was left in equal shares to the Kinsel Grandfather's four children. After the Kinsel Grandfather's death, Lesey stated repeatedly to Kinsel family members that she would never sell her interest in the ranch and that her portion of the Kinsel Ranch would go to certain members of the Kinsel family. 18. On December 16, 1996, Lesey, as part of her estate planning, executed the Lesey B. Kinsel Trust Agreement ("Lesey's Trust"), and transferred substantially all of her money and property, including her 60% interest in the Kinsel Ranch, into the Trust. The Trust provided for certain distributions to be made to charity, other individuals, and to certain members of the PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE 7 Kinsel family with the Kinsel Ranch going to certain Kinsel family members upon Lesey's death, with any residuary of the Trust to Defendant Lindsey. Defendant Oliver was to receive $20,000.00. A true and correct copy of Lesey's Trust Agreement is attached hereto as Exhibit "A." On October 25, 2001, and May 17, 2004, Lesey executed First and Second Amendments, respectively, to her Trust. On June 18, 2004, Lesey executed a Third Amendment to her Trust Agreement, a true and correct copy of which is attached hereto as Exhibit "B." 19. Defendant Lindsey is Lesey's niece. Defendant Lindsey is listed as a Successor Co-Trustee of Lesey's Trust, of which Plaintiffs are beneficiaries. Defendant Oliver is the nephew of Lesey, the brother of Defendant Lindsey, and lives next door to Defendant Lindsey. At some point in 2005, Defendants Lindsey and Oliver moved Lesey to Tarrant County, Texas, to live near them. 20. Over the ensumg two-to-three years, Lesey's mental and physical health deteriorated dramatically. As of February 2007, Lesey was 94 years-old and under the care of a physician. She suffered from macular degeneration, rendering her blind so that she was unable to read. She was weak, often confused, suffered from heart problems, could not read, was taking different kinds of medications, and hallucinating. 21. On February 23, 2007, Defendants Lindsey and Oliver drove Lesey to the office of Mr. M. Keith Branyon ("Branyon"), a partner at Jackson Walker, L.L.P. ("Jackson Walker"), and arranged for Lesey to mark on the signature line of a purported Fourth Amendment to her Trust ("Fourth Amendment") and a purported Will ("February 23, 2007 Will"). A true and correct copy of the purported Fourth Amendment is attached hereto as Exhibit "C." The purported February 23, 2007 Will is more particularly discussed below. PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGES 22. Prior to February 23, 2007, Defendants Lindsey and Oliver had not been left any interest in the Kinsel Ranch. The purported Fourth Amendment, among other things, purported to increase Defendants Lindsey's and Oliver's share of Lesey's assets in the Trust by giving Defendants Lindsey and Oliver equal ownership in the minerals under the Kinsel Ranch upon Lesey's death. The purported Fourth Amendment also eliminated a $5,000 distribution to the St. Labre Indian School - a distribution that had been provided for in Lesey's original trust agreement and the first three amendments to that Trust Agreement. 23. In December 2007, Defendant Lindsey called Virginia Kinsel and said "we have decided to sell the ranch." After that, in early 2008, Defendant Lindsey represented to Plaintiffs and others that Lesey did not have sufficient money to fund her care and living expenses, and that the Kinsel Ranch needed to be sold as a result. 24. In February, 2008, Plaintiff Edwards went to Fort Worth to spend time with Lesey because Lesey had been sick. While Plaintiff Edwards was in Fort Worth, Plaintiff Edwards and her sister-in-law, Robin Kinsel, went to Defendant Lindsey's house to discuss with Defendant Lindsey the reasons why Defendant Lindsey was proposing to sell the Kinsel Ranch. When at Defendant Lindsey's house, Defendant Lindsey's husband, Bob Lindsey, stated that Lesey had Alzheimer's disease or dementia and that she would get very confused. While Plaintiff Edwards was visiting with Lesey during her trip, she realized that Lesey would sometimes not recognize family members at times whom she had known well. During one of their conversations, Lesey asked Plaintiff Edwards where Lesey's car was. When Plaintiff Edwards advised Lesey that she had given her car to Defendant Lindsey two years before, Lesey stated "I know that -- that's ancient history, but I want to know where my car is!" Also during the visit, one of Lesey's PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE9 caregivers advised Plaintiff Edwards that Lesey would often hallucinate and become confused. 25. In order for the Kinsel Ranch to be sold, Defendants Lindsey and Oliver needed the consent of the Kinsel family members who owned the combined 40% interests not owned by Lesey's Trust. On February 19, 2008, Branyon sent Plaintiff J. Frank Kinsel the letter attached hereto and labeled Exhibit "D." In the letter, on which Defendants Lindsey and Oliver were "blind carbon-copied," Branyon represented the following: As you may know, Ms. Kinsel's living expenses, including the care she receives at her home, have increased substantially of late. As we have investigated the various possibilities available to her in raising some additional cash, she has made the decision that she would like to sell the referenced property in Atascosa County. On February 26, 2008, Branyon sent another letter to Plaintiff J. Frank Kinsel, a copy of which is attached hereto as Exhibit "E." In Exhibit "E," Branyon failed to mention Lesey's alleged need to raise additional money for her care, but stated the following: "I represent Lesey Kinsel and am not at liberty to discuss any issues regarding her estate planning." Defendants Lindsey and Oliver were again "blind carbon-copied" on the letter. On February 26, 2008, Branyon also sent Plaintiff Collins the same letter that he sent to Plaintiff J. Frank Kinsel on that date, a copy of which is attached hereto as Exhibit "F." 26. Without knowledge of Lesey's actual financial condition and relying on Defendants Lindsey's and Branyon's false representations that Lesey did not have sufficient money to fund her care and living expenses, consent was given by the Plaintiffs (and Intervenor) who owned interests in the Kinsel Ranch so that their Grandmother, Lesey, would be provided for. Unbeknownst to Plaintiffs, Defendants Lindsey and Oliver used misrepresentations, fraud, breaches of fiduciary duty, and undue influence to manipulate the sale of the Kinsel Ranch as a PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEIO part of a scheme and plan to increase the residuary portion of Lesey's estate, which was to go to Defendant Lindsey, to the detriment of the Plaintiffs. In June, 2008 - the month before Defendants Lindsey and Oliver had Lesey mark on documents conveying the Kinsel Ranch - Lesey's Trust had over $1.3 million dollars in a brokerage account, in addition to funds that Lesey and her Trust had in a checking account and a savings account. Yet, as shown above, Defendants Lindsey and Oliver and Branyon led Plaintiffs and Intervenor to believe that Lesey- who was 95 years of age and in extremely poor health- did not have sufficient money to pay for her living expenses for the rest of her days. 27. On July 9, 2008, Defendant Lindsey called Lesey's physician's office and said she wanted to obtain a do-not-resuscitate order for Lesey. On July 24, 2008, Defendant Lindsey, in furtherance of her fraud, completed the sale of the Kinsel Ranch. On August 5, 2008, Lesey was admitted to the Harris Methodist Hospital emergency room; her doctor was of the opinion that she had suffered a stroke and was likely to suffer additional strokes. Lesey was released August 6, 2008, but was confused and could not talk. On August 7, 2008, Defendant Lindsey called Lesey's doctor's office and stated to the nurse that Lesey spent most of her time unconscious and moaning, and that Defendant Lindsey wanted hospice care for Lesey. 28. On August 12, 2008- only ten days before Lesey's death and only weeks after the sale of the Kinsel Ranch - when Lesey was gravely ill,had recently had what her physician believed to be a stroke, had just been released from the hospital, was confused and perplexed, was often unconscious, was taking narcotic pain relievers, including morphine, was suffering from vertigo and nutritional deficiencies, and was still suffering from macular degeneration and unable to read, Defendants Lindsey and Oliver, in furtherance of their plan and scheme, arranged PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE II to have Lesey mark on the signature line of a purported Fifth Amendment to Lesey's Trust ("Fifth Amendment"). A true and correct copy of the purported Fifth Amendment is attached hereto as Exhibit "G." The amendment purported to revoke the provisions granting Lesey's interest in the Kinsel Ranch to certain members of the Kinsel family upon her death. The amendment also purported to eliminate the $5,000 distribution to the Texas Tech Loyalty Fund (Texas Tech was Lesey's alma mater). Lesey had over the years contributed to her alma mater and intended to contribute $5,000 to that fund by way of her Trust and her Will. It also purported to disown Plaintiff Collins, Lesey's Granddaughter, despite the fact that Lesey had been adamant, and stated to Defendant Lindsey in Plaintiff Collins's presence, that what Plaintiff Collins was to receive from Lesey would never be reduced. 29. Defendants Lindsey and Oliver arranged for Lesey to mark on the purported Fifth Amendment in an apparent effort to "tie up a loose end" in ensuring that that the proceeds from the sale of the Kinsel Ranch would pass to Defendant Lindsey as residuary beneficiary of Lesey's Trust. The purported Fourth and Fifth Amendments directly increased Defendant Lindsey's interest in Lesey's Trust by millions of dollars and Defendant Oliver's interest in Lesey' s Trust by hundreds of thousands of dollars. 30. Only a few hours after Branyon and Defendants Lindsey and Oliver arranged for Lesey to mark on the signature line the purported Fifth Amendment to her Trust in August of 2008, Branyon (on that same day) sent the following email to Defendant Lindsey, a copy of which is attached hereto as Exhibit "H": PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE12 The latest amendment doesn't affect you, and I think it might be a good idea for me to keep it in my file and not to send anyone (including you) a copy of it at this point. I can't guarantee that someone won't try and contest it after Lesey dies. In fact, I expect it to happen. However, I will be able to keep you out of it, and I don't anticipate any problems in defeating any contest that may be filed. Branyon's above email to Defendant Lindsey underscores, among other things, that Branyon knew that there was, at the very least, something improper or questionable about the fact that Lesey marked on the purported Fifth Amendment. If Lesey had the requisite capacity to execute the purported amendment and had not been unduly influenced to do so, there would be no need for Branyon to anticipate a contest to that purported amendment. 31. Lesey died only ten days after Defendants Lindsey and Oliver, as part of their undue influence scheme, fraud, and conspiracy, orchestrated by their counsel, Branyon, had Lesey place her mark on the signature line of the purported Fifth Amendment -- on August 22, 2008 in Tarrant County, Texas. 32. A chart summarizing the bequests made in Lesey's Trust and its amendments and purported amendments is attached hereto as Exhibit "I." 33. On August 27, 2008, Lindsey filed an Application for Probate of Will and First Codicil and Issuance of Letters Testamentary, a true and correct copy of which is attached hereto as Exhibit "J ," and sought to admit to probate the May 17, 2004 Will of Lesey and the June 18, 2004 Codicil to Lesey's May 17, 2004 Will (collectively "May 17, 2004 Will"), when Branyon and Defendants Lindsey and Whiddon knew that Lesey marked on another purported Will on February 23, 2007. Branyon and Jackson Walker represented Defendant Lindsey in filing her application to probate the May 17, 2004 Will. In that application to probate, Lindsey represented PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEI3 that: Decedent left a valid written Will ... dated May 17, 2004, which was never revoked. The Will was modified in a First Codicil ... dated June 18, 2004. Both documents are being filed herewith. The subscribing witnesses to Decedent's Will were Mandy McCauley, whose present residence address is unknown, and Christina Root, whose present residence address is unknown. The subscribing witnesses to Decedent's First Codicil were Mandy McCauley, whose present residence address is unknown, and Christina Root, whose present residence address is unknown. The Will and Codicil were made self-proved in the manner prescribed by law. (Emphasis added). 34. On August 29, 2008, Defendant Lindsey filed a First Amended Application to probate Lesey's May 17, 2004 Will and in that document again made the representations set forth in the indented paragraph above. Branyon and Jackson Walker represented Defendant Lindsey in the First Amended Application. 35. On September 9, 2008, Plaintiffs filed in this Court an Original Petition and Suit for a Declaratory Judgment and Application for a Temporary Restraining Order against Defendant Lindsey. 2 Defendant Lindsey was served with the Temporary Restraining Order ("TRO") the following day. 36. Immediately after Defendant Lindsey was served with the TRO, she, without noti(ving Plaintiffs or their counsel, rescheduled the hearing on her First Amended Application, which had originally been set for September 25, 2008 at 10:00 a.m., to September 12, 2008 at 2:00p.m. Plaintiffs assert that Defendant Lindsey rescheduled the 2 Plaintiffs subsequently amended their petition to sue Lindsey, as Successor Co-Trustee ofLesey's Trust, and Oliver, Individually.Additional defendants have also since been added. PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGE14 hearing in an effort to have Defendant Lindsey appointed as Independent Executor ofLesey's Estate prior to any additional action being taken with regard to the TRO. 37. Immediately prior to the September 12, 2008 hearing, Defendant Lindsey filed a document entitled "Proof of Death and Other Facts," a true and correct copy of which is attached hereto as Exhibit "K." In that document, Defendant Lindsey swore under oath that "[t]he document dated May 17, 2004, now shown to me, which purports to be Decedent's Will, was never revoked so far as I know. The document dated June 18, 2004, now shown to me, which purports to be the First Codicil to Decedent's Will, was never revoked, so far as I know." Branyon and Jackson Walker filed on Defendant Lindsey's behalf this sworn "Proof of Death and Other Facts." 38. On September 12, 2008, the Court heard evidence in connection with Lindsey's First Amended Application. Attached hereto as Exhibit "L" is a true and correct copy of the transcript of that hearing. Plaintiffs respectfully refer the Court to Defendant Lindsey's sworn testimony set forth in lines 6-25 on page 9, lines 1-25 on page 10, and lines 1-18 on page 11. As shown by such testimony, Defendant Lindsey again swore under oath that Lesey's May 17, 2004 Will had never been revoked. Branyon and Jackson Walker represented Defendant Lindsey at the hearing on Defendant Lindsey's First Amended Application. 39. At the September 12, 2008 hearing, as shown by lines 20-25 on page 6 and lines 1-9 on page 7 of Exhibit "L," the Court approved the parties' agreement that Defendant Lindsey would not be appointed as an Executor of Lesey's Estate and that Defendant PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGElS Whiddon would be appointed as such. The agreement also provided that if Defendant Whiddon subsequently determined that there was a need to have Defendant Lindsey appointed as Executor, that Defendant Whiddon would make an application to the Court and notifY Plaintiffs of such application. After approving the parties' agreement, the Court entered an order admitting Lesey's May 17, 2004 Will to probate and authorizing Letters Testamentary to be issued to Defendant Whiddon. 40. On September 26, 2008, Whiddon filed his Oath as Independent Executor of Lesey's Estate wherein he swore that "the writing which has been offered for probate is the Last Will and Testament and First Codicil of Lesey B. Kinsel, so far as I know or believe." A true and correct copy of Defendant Whiddon's Oath is attached hereto as Exhibit "M." 41. Thereafter, on November 3, 2008- almost two (2) months after Lesey's May 17, 2004 Will was admitted to probate - Defendant Lindsey, again represented by Branyon and Jackson Walker- filed a "Second Amended Application for Probate of Will and Issuance of Letters Testamentary" ("Second Amended Application"), a true and correct copy of which is attached hereto as Exhibit "N." In the Second Amended Application, Branyon and Defendant Lindsey sought to admit to probate an alleged February 23,2007 Will ofLesey and requested the Court to issue Letters Testamentary to Defendants Lindsey and Whiddon. The purported February 23, 2007 Will was witnessed by Mr. Colin L. Murchison, an associate attorney at Jackson Walker, and was notarized by Branyon. Amazingly, the purported February 23, 2007 Will was allegedly marked on by Lesey on the same day that she marked on the purported Fourth Amendment to her Trust. Plaintiffs assert that Defendants Lindsey PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEI6 and Oliver used undue influence to manipulate Lesey into marking on the purported February 23, 2007 Will, or, alternatively, that Lesey did not have the capacity to mark on that document. 42. Defendant Lindsey's, Defendant Oliver's, and Jackson Walker's discovery responses in his lawsuit conclusively show that Defendant Lindsey, Defendant Oliver, Defendant Whiddon, Branyon, and Jackson Walker knew of the purported February 23, 2007 Will when the May 17, 2004 Will was admitted to probate and that they (1) failed to advise Judge Ferchill or Plaintiffs of the purported February 23, 2007 Will prior to the hearing on Defendant Lindsey's application to probate Lesey's May 17, 2004 Will, (2) testified falsely in documents filed with the Court concerning Lesey's May 17, 2004 Will, and (3) testified falsely in open Court concerning Lesey's May 17, 2004 Will. In support, Plaintiffs respectfully refer the Court to Bates-labeled documents 0184, 3343, and 3345, attached hereto as Exhibit "0," produced in discovery by Defendant Lindsey and Jackson Walker. The correspondence attached as Exhibit "0" shows that Branyon and Defendants Lindsey and Whiddon knew ofthe existence ofLesey's purported February 23,2007 Will when they filed false documents and affidavits with the probate court and testified falsely in open court. 43. As shown by Exhibit "0," on February 23, 2007, Branyon wrote a letter to Defendant Whiddon enclosing a copy of the original "Last Will and Testament of Lesey B. Kinsel" signed that day. 44. On August 20, 2008 -two days before Lesey died- Defendant Lindsey emailed Branyon and wrote "I also asked if [Defendant Whiddon] had Lesey's will that we PLAINTIFFS' FIFTH AMENDED PETITION AND SUIT FOR DECLARATORY JUDGMENT PAGEl? did in your office. I thought I had it, but maybe it wasn't the original. Anyway, I asked him to send it to you and he said he would." (Emphasis added). The "Wiii" to which Defendant Lindsey was referring could not have been Lesey's May 17, 2004 Wiii, as that Will was executed long before Lesey purportedly retained Branyon or Jackson Walker to assist her in her estate-planning, as shown by Branyon's testimony at the September 12, 2008 hearing. On August 22, 2008 -just hours after Lesey died- Branyon emailed Defendant Lindsey to ask who had Lesey' s original "Will," to which Defendant Lindsey responded that Defenda