Texas - Introduction to Probate
of Lost and Altered Wills
YouKnowItAll.com
CLE Provider
© A. Hawkins 2004
Suitability
This course is suitable for any
interested lawyer. The advanced lost Will courses may be taken by any lawyer,
but are intended primarly for those who are very serious about the topic. The advanced altered Will course is
suitable for any interested lawyer, and important to the estate planner or Will
litigator. This cluster of courses
covers topics that frequently appear at the core of the plots in books and
movies. The cases are
fundamentally interesting and entertaining.
Scope
This course is one of a cluster of
courses that cover all[1] reported Texas cases since 1950
on missing and lost Wills as well as Wills that have been altered after
execution. The material is
divided into five separate courses to make each course a reasonable
length. This also allows you to
take one course at a time as your schedule permits and gradually become a
KnowItAll.
The Cluster of Lost and Altered
Will Courses.
There is some overlap between the
concepts of an altered Will and a lost Will, as well as considerable procedural
overlap in the litigation, so the topics are best explored together. For example, when Ivan Hoover died, the
document in IvanÕs Will envelope included the original Will signature page with
the original signatures of Ivan and the witnesses to his Will, along with the
original signed self proving affidavit, and a substituted first Will page with
altered dispositive provisions and fiduciary designations. Was IvanÕs Will
Òaltered,Ó Òinterlined,Ó or ÒlostÓ?
The concepts sometime blend like Texas Chili. As a result, some material that applies to one concept will
be covered in a course on the other concept. The assumption is that you will
take the full cluster of courses.
For clarity, the word Will is capitalized if it refers to a testamentary
concept.
This is the introductory course.
This course should be taken first. This advanced course texts are written on
the assumption that you have completed this course. You may take the advanced
courses in the cluster in any order, although the lost Will courses are
logically taken as a group with the Altered or Interlined Will course taken before or after the
three lost Will courses. Because of the abundance of lost Will cases, most all
of this course is on lost Wills.
These courses are case
studies. Cases are kept intact
rather being chopped up and quoted or cited issue by issue. Cases typically involve several issues,
but are grouped under one of those issues. Be aware that other issues are often
present. As a result, some cases that involve a particular issue will be
grouped under a different issue. The court opinions are lightly edited[2] to retain the full flavor and context.
Prior to each court opinion, the
teacher provides italicized commentary.
The Process
1. Study
this text.
2. When
you finish this text, go to www.YouKnowItAll.com to observe the
discussion. There, you may choose
to ask questions or make comments, or you may choose to just observe any
discussion posted by others.
3. Keep
track of your actual study hours and dates. After you complete your study, you certify your actual study
hours at www.YouKnowItAll.com and you choose to whether to pay by check or
credit card. Study time counts.
Procedural and administrative time does not count. You receive credit for the actual study time you put in,
based on your certification, up to the maximum for the course. Tuition is similar. If your actual
study time is more than the maximum, your tuition is capped at the
maximum. If your actual study time
is less than the maximum, tuition is calculated based on your actual study
time, at $20 per hour. Please certify your actual study time even if it is
above the maximum. This allows us
to better calibrate our courses, and helps the MCLE regulators recognize the
real time you spend in your study.
4. YouKnowItAll.com
provides a certificate of your attendance with the course name, course number,
and the CLE credit hours you earned. If you are in the Texas bar, we report
your credit to the State Bar of Texas.
If you are in another bar and need something else, let us know.
* * * * *
This course is primarily a case
study which relies on the words of the courts which are quoted so that you may
read them yourself. The teacher
has selected quotations, deleted
original emphasis, added the authors emphasis, and moved citations to
footnotes. Commentary by the teacher is included in the text and in footnotes.
Five asterisks ( * * * * * ) identify each new case, If a case doesnÕt interest
you, just search for * * * * * to find the next one. This also helps if you
wish to go back to reread a case.
There are three kinds of
footnotes.
1. Footnotes by the court retain
the courtÕs original number. Our
footnote is a footnote to that number.
2. Footnotes that move citations
to the footnotes are intended to make the material more readable. Our footnote
has the courtÕs citations.
3. Footnotes that contain some of
the authorÕs commentary.
If you read this course online,
your browser will probably let you click on a footnote number to go to the
footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if
you hold your curser over the footnote number without clicking If you print the text, you may wish to
staple the footnotes separately so you may easily refer to them. They are at
the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page.
You may copy it into a word processor to print it if you like. If you have any problems, let us know.
Optional Telephone Conference
The teacher is available for an
optional personal telephone conference on the substance of this course. If you have a question about the
application of the material in this course to a particular case, or would just
like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone
conference, email or call YouKnowItAll.com.
Table of Contents
The table of contents is a separate
document because it includes all of the contents of this cluster of courses.
You may print it out once and use it for all courses.
The Course Text.
Texas - Introduction to Probate of
Lost and Altered Wills (2003)
Preface
Wills Are the Reflection of the
TestatorÕs[3] Intent.
Wills are misunderstood by lawyers
and courts. Most people think they
know what a Will is, and what it is that constitutes a Will. Most are incorrect. In order to understand the issues in
this course, you may need to see Wills in a new and different way. For the
moment, relax, set aside your knowledge and understanding about Wills, open
your mind, and explore the wonderful world of Wills.
Some people think a Will is a
ÒdocumentÓ that....
Instead . . . think philosophically.
A Will is the reflection of the
TestatorÕs intent.
Think of your reflection in a
mirror. You can see it. You canÕt
touch it. It is real. It is not real. It is intangible. It is you. It is not
you. It is what you are. It is not what you are.
A Will is a reflection of the
intangible mental intentions of the testator. A Will reflects ideas. A Will is
not so simple after all.
The ÒTestatorÓ is term for the
person,[4] or the people[5] whose Will it is.
A Will might not be the TestatorÕs
intent.
A Will might be manifested in a
document. A Will might not be written.
When there is a Will, the intent is
the Will.
A Will is allowed by statute. A Will
is controlled by statute. Statutory requirements must be met to create, amend,
or revoke a Will. Both intention
and compliance with the rules are required to create, amend, or revoke a Will.
A Will is intangible. A Will is the idea, intent, or ÒwillÓ
of the testator. Sometimes a Will is manifested by a written document. Sometimes
it is not. Sometimes the content of a Will is proven by the contents of a
written Will. Sometimes the
substance of a Will is proven without a written Will.
Wills that are reflected in a written
document have the advantage of being easily read. Both oral Wills and missing unrevoked written Wills are
Wills. The intent which is
manifested in these Wills must be proven in some way other than by seeing the
words in a document. The practical benefit of a written Will is obvious.
Written Wills are the common
practice. People get used to a
Will being reflected in a document. People think of the document as being the
Will. That isnÕt quite right.
The intent which is shown by the
words of the document is the Will. The document is a written manifestation of
that intent. And yet, in some respects we do refer to the document as being the
ÒWill.Ó Be careful with the
concept. Those who focus on the
written document may miss the true nature of the concept of a ÒWill.Ó
ÒIntentÓ is also an insufficient
concept. A person may intend to have a Will, but not have one; intend to revoke
a Will, but not revoke it; or intend to amend a Will, but not amend it. Compliance with the statutory
requirements is required in order for the intent to be honored.
So, what is a Will? It is the
refection of the testatorÕs intent which complies with the statute to
constitute a Will.
It is proven in compliance with
statutory or court requirements.
This is just one of the concepts
which apply to Wills. Others include the matters that Wills may deal with, the
revocability and amendability of Wills, the requirement of death to make a Will
effective, and the requirement of probate to implement a Will. There are
others. Wills are multifaceted, interesting, strange creations.
Wills that are interlined, mutilated,
damaged, destroyed, or missing are particularly interesting creations.
* * * * *
Common Issues
Altered, damaged, lost, destroyed,
and missing wills involve many of the same issues, regardless of what happened
to the Will. These include:
* Who did ÒitÓ to the Will? Did the testator do it? Did someone else do it at the
testatorÕs direction?
* What was the testatorÕs
intent? If the testator did
something, what did the testator intend by that act?
* If the testator did not do it,
should the act be disregarded?
* If the will isnÕt available, or
canÕt be read, what are the words and ideas that are missing, destroyed,
removed, or hidden?
* How do you prove the facts?
* How does the dead manÕs statute or
rule apply?
* What did the testator want?
* Who does the court prefer? Who does the court despise? Is
someone committing a fraud or a
really bad person? Did they cause
ÒitÓ to happen?
* * * * *
Interlined, Altered and Damaged Wills
* * * * *
What is an interlined Will?
Interlineation is the term for
revising a document by marking the revisions on it. It refers to writing
between the lines, although the concept is not restricted to that precise
method of editing. For example, a will may be typed or printed with the
following bequest:
ÒI give my cat to Jen.Ó
It might be then be edited in pen or
pencil to read as follows:
ÒI give my 50 pound solid gold cat figurine to Jen.Ó
It might also be edited by a
typewriter to read as follows:
50 pound solid gold
ÒI give my/cat to Jen.Ó
That is interlineation. An
interlineated or interlined Will is a Will which has such interlineations.
Interlineated Wills are invariably written Wills.[6]
Interlineation may be hard to read,
or hard to interpret, but that is not the issue of this course. For this
course, we assume that there is a clear meaning and intention expressed before
the change; the interlineation changes that meaning; and the changed meaning is
clear.
The Essence of the Law of Interlined
Wills
The issues created by interlined Wills
are not as different from the issues created by a standard written Will as
might be suspected. The issues revolve around whether a Will was executed,
amended, or revoked in compliance with the statutes, and if so, what the Will
contains. The following factual
issues might arise.
* Was the Will interlined before, or
after, execution?
* If it was interlined before
execution, did the testator know that the Will was interlined when executing
it?
* Did the interlineation constitute a revocation by destruction?
* If it was interlined after
execution, is the interlineation a codicil or a revocation; or does it have no
effect?
*Was
the testator the one who made the interlineation?
*Was
it entirely in the hand of the testator?
*Was
it intended to be a codicil?
*Is
it coherent as a codicil?
*Was
it intended to be a revocation?
A key to the analysis of an
interlined Will is the recognition that the standard rules of Will execution
and revocation apply. Any analysis must fit those standard rules.
A second key is that the
interlineation may be a fraudulent act by someone other than the testator, or
may appear to be a fraudulent act even if it is not one. When the courts
perceive fraud, their attitude and analysis may easily reflect the preference
for a result that thwarts the fraud. When reading cases, one should seek a
sense of Òwhat really happenedÓ
and what the court thinks Òreally happenedÓ to see if the court is reaching the
result it seeks, rather than the result dictated by law.
The rest of the altered, damaged, and
interlined material is reserved for the advanced course, ÒTexas - Probate of
Wills That Are Altered or Interlined (Advanced).Ó
* * * * *
Lost or Missing Wills
* * * * *
The essence of Lost or Missing Wills
Cases.
The formula used to create a lost or
missing Will is simple. Start with a valid Will, add the death of the testator,
and have the Will unavailable for probate because it is missing.
The Will might be lost -- i.e.
misplaced. It might have been
destroyed. It might have been hidden. The testator might have destroyed in with the intention of revoking
it. The testator might have
destroyed it by accident. The
lawyer who drafted it may have lost it.
The lawyer who took possession after death in order to probate it may
have lost it. It may be lost behind a couch cushion. The testator may not know
that it was destroyed. Someone
else may have destroyed it.
Someone else may have lost it.
Someone may have borrowed it, but not returned it. It is possible that no one knows what
happened to it. It is possible
that someone does know. The one
common fact is that the Will (or part of the Will) is missing.
Texas courts inartfully refer to
missing Wills as ÒlostÓ wills. Not
all are lost. Some were lost. Some were destroyed or hidden. This course covers
what Texas courts call Òlost WillsÓ even if they were not actually Òlost.Ó
Missing will litigation involves art
as well as science. There are some legal technicalities, but understanding the
kinds of cases, evidence, and impressions received by the courts is equally
important. The legal technicalities may change over the years. The situations and impressions do
not.
For example, if a woman dies and her
will is missing, will the court admit the missing Will to probate? We donÕt know. But, letÕs add a few facts. She was survived by a spouse. Her missing will left everything to her
children. We still donÕt know the
result. With a few more facts we will know. She was married a few days before
her death. She had filed for
divorce and alleged cruelty. The
missing will was where her husband might have found and hidden or destroyed it.
Can we predict that the missing Will is going to be admitted to probate and
exclude the dastardly husband from her estate? Yes. We donÕt need to think too much about the technicalities to
know the outcome. The court will
find a way to exclude the dastardly husband because he is dastardly. Often the
facts matter more than the law. Often the court finds a way for the estate to
pass to the party the court likes, or the party the court feels the decedent
liked. Focus on the facts and the
way the court deals with them, as well as the legal issues.
When you have a missing will case,
you can judge the facts, decide what matters and what impression it will create,
and be alert to the issues that arise.
Then, research the rules, statutes and cases on those particular issues
to be sure you know the current law.
Because of the purpose of this course
and the time span of the cases, much has changed from the law and attitudes
reflected in some cases.[7] Some holdings were later disapproved.
Various rules and statutes have been renumbered or reorganized, and the
jurisdiction of courts as well as some court procedures have changed over the
years. Some cases involve procedures
that no longer exist, such as appeal from county to district court for a trial
de novo. This course is not about court procedures, so this text doesnÕt
discuss them. Be aware that the
process may not be the same today.
None of that affects what this course is designed to teach.
The author provides an italicized
comment about each case as a guide prior to the courtÕs opinion. Cases are separated by the following
symbol * * * * * so you may use
the find command to search for that symbol and find the the next case if you
desire to do so.
The Presumption and the Burden of
Proof Required to Overcome it.
Evidence Against it Pops The
Presumption Like a Balloon.
If a Will that was in the possession
of the testator is missing, there is a presumption that the testator revoked it
by destroying it. If there is
evidence to the contrary, the presumption is destroyed. It is like a balloon that is punctured
and pops. The evidence destroys
the presumption and the
presumption is gone. With the presumption gone, the actual evidence is weighed
normally.
* * * * *
A preponderance of the evidence is
required to refute the presumption of revocation by destruction of a missing
Will last seen in the possession of the testator. Glover establishes the burden
of proof. Earlier Texas cases
often held that a higher burden of proof was required. Beware of any statements
about the burden of proof in cases that were decided before Glover.
In the Matter of the Estate of Grace
Glover, Deceased, 744 S.W.2d 939 (Tex 1988) (per curiam)
ÒThis case involves a will contest
between a will beneficiary and intestate heirs. The issue before the court of
appeals was whether there was sufficient evidence to support the jury's finding
that the will was not revoked by the testatrix. The court of appeals held a
presumption of revocation arises when a will is not produced in court, and the
will was last seen in the possession of the testatrix or in a place to which
she had ready access.[8] . . .
ÒThe court of appeals correctly held
that the standard by which the sufficiency of the evidence should be reviewed
is by a preponderance of the evidence. Those cases in which courts of appeal
have held that the standard of review is by clear and convincing evidence are
hereby disapproved.[9]
* * * * *
Issues: The Amarillo Court of Appeals
Glover opinion which was affirmed by the Supreme Court held that the burden of
proof required to overcome the presumption is the Òpreponderance of the
evidenceÓ standard.
Estate of Glover 744 S.W.2d 197 (Tex.App. - Amarillo
1987) (affirmed)
Ò[T]he jury findings that the
"Brown Will" was last seen in the possession of, or accessible to
Grace Glover, and that that will could not by the exercise of reasonable
diligence be produced in court, are not attacked by either side in this appeal.
Moreover, both sides agree that where the will of a testator was last seen in
the possession of a testator or in a place where the testator had ready access
to it, then the failure to produce such a will after the testator's death raises
a presumption that the testator has destroyed the will with the intention to
revoke it and that, under such circumstances, the proponent of the will has the
burden of proof to overcome or negative such presumption by competent evidence.[10]
ÒBoth sides, however, differ as to
the standard by which the sufficiency of the rebutting evidence should be
measured. Appellee says that the correct standard is the usual civil
preponderance of the evidence standard. Appellants, however, citing the
statement from this Court in Bailey v. Bailey,[11] that the presumption may be
"overcome only by clear and convincing evidence," say that such proof
must meet that evidentiary standard. The statement of the Bailey Court has been
cited with approval in such cases as Pipkin v. Dezendorf;[12] Berry v. Griffin;[13] and Dodd v. Peoples National Bank.[14]
ÒThe difference is material, for a
clear and convincing standard is an intermediate one falling between the
preponderance standard of ordinary civil proceedings and the beyond a reasonable
doubt standard of criminal proceedings, and is defined as "that measure or
degree of proof which will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be
established."[15] Application of that standard would also
require application of a more onerous intermediate appellate standard of
review. That standard has been articulated as requiring the appellate court not
to determine whether the trier of fact could reasonably conclude that the existence
of a fact is more probable than not, as in ordinary cases, but whether the
trier of fact could reasonably conclude that the existence of the fact is
highly probable.[16]
ÒAs related to this type of
proceeding, however, we believe the Court's decision in State v. Turner,[17] is fatal to appellants' contention. In
that decision, the Court had occasion to consider similar language to that used
by the Bailey Court by other courts. In that case, the Court pointed out that
the general rule in civil cases was that the party having the burden of proof
must establish the case by a preponderance of the evidence. In a thorough
discussion of the types of cases in which such language was used and the
historical origin of that type of phrasing, the Court cited with approval its
prior statement in Sanders v. Harder,[18] in which it characterized that language
as "but an admonition to the judge to exercise great caution in weighing
the evidence."[19] The Court concluded that, while some
courts in other jurisdictions make a distinction between the standard of clear
and convincing evidence and the usual civil standard of the preponderance of
the evidence, as a general rule, Texas Courts review evidence by but two
standards; those being factual sufficiency and legal sufficiency. The Court
continued with the admonition that in the ordinary civil case, the requirement
of clear and convincing evidence is "merely another method of requiring
that a cause of action be supported by factually sufficient evidence." Id.
Thus, the teaching of this case is
that absent other specific requirement, either statutorily or by case decision,
a proponent's burden is to establish its cause by a preponderance of the
evidence. The sufficiency of the evidence produced would be measured by the
traditional tests set out in such cases as In re King's Estate[20] and Garza v. Alviar.[21]
The more onerous requirement of clear
and convincing evidence has been mandated by statute and by case law in such
instances as commitments under the Mental Health Code.[22][23] It has also been required in cases
involving the involuntary termination of a parent-child relationship.[24] However, the requirement was made in
those cases because of the necessity for protection of such fundamentals as a
right to liberty and the right to enjoy a natural family unit. The instant case
is one more in the mainstream of ordinary civil proceedings and, thus, is
subject to the general rule explicated in State v. Turner[25]
. . . .
A presumption such as that in this
case is a presumption of fact and, absent evidence to the contrary, would have
compelled the jury to reach the conclusion that the will had been destroyed by
Ms. Glover.[26] However, a presumption of this type is
rebutted by and cannot stand in the face of contrary evidence although the
facts giving rise to the presumption remain as a part of the evidence.[27]Ó
* * * * *
Issues: Hunter is a recent case on
the amount of evidence required to defeat a motion for summary judgment in
favor of the presumption of revocation.
Hunter v. Palmer, 988 S.W.2d 471 (TexApp-Houston [1st Dist.] 1999)
ÒThis case involves a dispute among
siblings concerning the probate of their mother's lost will. We address whether
the trial court erred by granting summary judgment in favor of appellees, Harry
G. Palmer and Richard Earle Palmer, Jr. (collectively "the sons"),
based upon their having established that their mother presumptively revoked her
will. We reverse and remand.
Factual and Procedural History
ÒOn August 31, 1982, Ernaree H.
Palmer ("decedent"), executed her last will and testament. On May 8,
1986, she executed a codicil to her will. Neither the will nor the codicil
could be located after her death on June 25, 1997. The sons filed an
application for letters of administration. Appellants Janet Hunter and Edwin I.
McKellar, Jr., Interested Person (collectively "Janet"), objected to
the sons' application for letters of administration and filed an application to
probate decedent's lost will. The sons objected to Janet's application.
ÒThe sons filed a motion for summary
judgment. They relied on the presumption that the decedent had revoked her
will, based on evidence that the will and codicil were last seen in decedent's
possession, and Janet's admission in her pleadings that the will could not be
found after decedent died. The sons' motion also asserted there was no evidence
that the decedent did not revoke her will. Based upon the substantive and
procedural context of the proceedings, we will treat the sons' motion as an
ordinary summary judgment motion filed pursuant to rule 166a(c) of the Texas
Rules of Civil Procedure and not rule 166a(i).[28]
ÒIn her response, Janet claimed the
sons did not establish that the decedent's will and codicil were last seen in
her possession or in a place to which she had ready access. The trial court
granted the son's motion for summary judgment. Janet then filed a motion for
new trial asking the trial court to set the summary judgment aside. The trial
court denied Janet's motion for new trial.
Summary Judgment
ÒIn her sole issue presented, Janet
contends the trial court erred by granting summary judgment because her summary
judgment evidence presented a genuine issue of material fact as to whether
decedent was the last person seen in possession of her original will and
codicil. As a subsidiary issue, Janet argues the trial court erred by refusing
to set the summary judgment aside, in response to her motion for new trial.
A. Standard of Review
ÒSummary judgment is proper only when
a movant establishes there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law.[29] When reviewing the summary judgment, we
review all grounds the trial court rules on and the movant preserves for review
that are necessary for the disposition of the appeal.[30] Further, when reviewing these grounds,
we indulge every reasonable inference in favor of the nonmovant, assume all
evidence favorable to the nonmovant is true, and resolve any doubts in the
nonmovant's favor.[31]
B. Probate of Lost Will
ÒA proponent who seeks to probate a
will must meet the requirements of proof in section 88 of the Probate Code. One
of the elements the proponent must establish is that the testator did not
revoke the will.[32]
ÒThe sons' motion for summary
judgment attacked this element of Janet's claim.
ÒA legal presumption is a rule of
law, statutory or judicial, by which the finding of a basic fact gives rise to
the existence of the presumed fact, until the presumption is rebutted.[33] The sons based their motion for summary
judgment on the following legal presumption: A decedent is presumed to have
destroyed a validly executed will or codicil, with the intention of revoking
it, if it was last seen in the decedent's possession or in a place where the
decedent had ready access to it, and it cannot be found after the decedent's
death.[34] To establish the presumption, the sons
provided the following evidence of the basic facts necessary to give rise to
the presumed fact that decedent revoked her will:
Ò(1) During the deposition of the
attorney who drafted decedent's will, the attorney testified that after
decedent executed her will, she took possession of the original will;
Ò(2) During the deposition of the
attorney who drafted decedent's codicil, the attorney testified that after
decedent executed her codicil, she probably took possession of the original
codicil; and
Ò(3) In Janet's application for
probate of decedent's lost will, Janet judicially admitted that she had made
diligent efforts to locate the original will and codicil, but was unable to do
so.
ÒIn response to the sons' motion,
Janet claimed there were a genuine issues of material fact as to whether
decedent's will and codicil were last seen in her possession and whether
decedent revoked her will. Janet also relied on deposition testimony of the
attorney who executed decedent's codicil, who testified he remembered that
decedent brought her original will to the location where she executed her
codicil on May 8, 1986. But while the sons relied on this attorney's testimony
that decedent probably took her original will and codicil with her after
executing her codicil, Janet provided additional testimony showing that the
attorney did not remember whether decedent did, in fact, take the originals
when she left.
ÒWe conclude that Janet's evidence
was sufficient to raise a genuine issue of material fact as to whether decedent
was the last person seen in possession of her original will and codicil.
Therefore, the trial court erred by granting the sons' motion for summary
judgment and by denying Janet's motion for new trial. Accordingly, we sustain
Janet's sole issue presented.
Conclusion
ÒWe reverse the judgment of the trial
court and remand this case to the trial court for further proceedings.Ó
* * * * *
Issues: Flores is a Òno evidence
summary judgmentÓ case involving possible page substitutions. It is both an
important case, and a questionable case. It is important because it shows the
importance of the burden of proof and the shift in the burden of proof when a
Will is probated. Before it is
admitted to probate, the burden of proof is on the proponent. After admission
to probate, the burden of proof is on a person who wished to set aside the
probate. A Òno evidence summary judgmentÓ resolves a case without trial if the
party with the burden of proof has no evidence for an essential element of the
claim. The Flores Will was
admitted to probate - then it was ÒcontestedÓ by a son who applied to set aside
probate of the Will. There is plenty of reason to speculate about what
happened. There is some indication
that pages may have been substituted.
But, what really happened?
What can be proven by evidence?
In Flores, the trial court grants, and the court of appeals affirms, a
no evidence summary judgment because the court concludes that there was no
evidence of alteration or page substitution after the Will was executed. As you
read Flores, consider whether the contestant might have prevailed if he had
contested the application to probate the Will, rather than waiting until the
Will was probated and then applying to ÒunprobateÓ the Will.
The case is questionable on the
merits. The evidence may not be
conclusive, but is there really ÒnoÓ evidence? There is evidence that, after he executed his will, the
testator said that the Will provided for the contestant. Is that some evidence
of what was in the Will? The court
of appeals says that the key is what was in the Will and in the testatorÕs mind
when the Will was executed. If you
say, Òmy son is a beneficiary of my WillÓ does that mean, Òmy son was a
beneficiary of my Will when I executed itÓ or does it mean ÒÒmy son is a
beneficiary of my Will, but was not a beneficiary when I executed itÓ? Does Òsome evidenceÓ that a Will
is altered, combined with Òsome evidenceÓ that the testator believed the Will
had beneficiaries that are not in the document at death combine to provide
Òsome evidenceÓ that the ÒWillÓ was altered after execution or before execution
without the knowledge of the testator?
Any evidence is enough to prevent the summary judgment and allow the
case to proceed.
For a comprehensive understanding of
Texas Òno evidence summary judgmentsÓ see YouKnowItAll.comÕs course on that
topic. That is a subject that all litigators, including estate litigators,
should master.
In re Estate of Flores, Deceased March 28, 2002 (Tex.App. - Corpus
Christi - Edinburg 2002)
. . . Roman Flores contends the trial
court erred in granting . . . summary judgment. We affirm.
A. Background
It is undisputed that appellant is
the son of Santiago (Jimmy) Navarro Flores and Aurora De Luna, who were never
married to each other. Appellant was born on November 3, 1968. In 1981, Jimmy
filed a legitimation suit in the district court of San Patricio County, seeking
to have appellant judicially declared his son. The district court granted Jimmy's
request and changed appellant's last name to Flores. Jimmy married appellee in
1984.
Jimmy died on December 20, 1997, at
the age of seventy-two. On February 10, 1998, the County Court at Law of San
Patricio County issued an order probating Jimmy's will, dated July 9, 1993, and
appointing his son, William C. Flores, as independent executor of the estate.
In the will, Jimmy stated that: (1) he was married to appellee; (2) he had four
living children: (a) William, (b) David Uvaldo Flores, (c) Rita Sanjinez Flores,
and (d) Sergio Eduardo Flores; and (3) he had no deceased children. The will
bequeathed "all property, real, personal and mixed acquired by me from
March, 1984, to the present" to appellee, and "all property, real,
personal and mixed acquired by me prior to March, 1984" to William, David
and Rita, "share and share alike." The residue of the estate was
bequeathed to appellee, if she survived Jimmy, or to William, David and Rita if
appellee predeceased Jimmy. Appellant was not mentioned in the will.
B. The Will Contest
On January 6, 2000, appellant filed a
will contest, asserting that: (1) the 1993 will was not a lawful and valid
will, and that it was "not executed with the formalities and solemnities
required by the Texas Probate Code;" (2) the 1993 will was a forgery and
had been altered; and (3) alternatively, the 1993 will was executed while Jimmy
was mistaken as to its contents. Appellant later amended his petition to assert
that Jimmy lacked testamentary capacity when he signed the will, and that the
will was "procured by misrepresentation or fraud." Under all these
theories, appellant asserted that: (1) the 1993 will was invalid and not
entitled to be probated, (2) therefore, Jimmy died intestate, and (3) as
Jimmy's natural child, appellant was entitled to a share of the estate under
the rules of intestacy.
1. Appellee's Motion for Summary
Judgment
Appellee filed a motion for summary
judgment, on both "traditional" and "no-evidence" grounds,
asserting that the will was self-proving and was properly admitted to probate,
and that appellant had no evidence that the will was not properly executed,
that it had been forged or altered, that Jimmy was mistaken as to the contents
of the 1993 will or that he lacked testamentary capacity when he signed it, or
that the signing of the will had been procured by misrepresentation or fraud.
2. Appellant's Response
Appellant filed a response restating
his theories of forgery, lack of proper formalities, mistake or
misrepresentation, and lack of testamentary capacity. He attached the following
evidence:
1. the expert report of Carol Ritter,
a questioned document examiner, which states that the typing in the will
"shows no evidence of alteration, but the first two pages have only three
sets of staple holes while pages three through ten have four or five sets,
indicating that pages one and two were substituted later." Ritter also
opines that "the full signatures of Mr. Flores on pages eight and ten of
the questioned will and the initials on pages three through ten are genuine.
The initials on pages one and two appear to be genuine but were not written at
the same time as the others;"
2. his own affidavit;
3. records from the voluntary
legitimization procedure in 1981; and
4. several photos and letters from
Jimmy.
Appellant later filed the following
evidence:
1. the affidavit of Rosie Dominguez,
which states that Jimmy told her in 1996 that he had left property in his will
to appellant, and that appellee had access to the will after Jimmy's death;
2. the affidavit of Jesus Munoz,
which states that Jimmy told him in 1996 that he had left property in his will
to appellant;
3. his own revised affidavit; and
4. the affidavit of his mother which
states that she had seen appellee removing papers from Jimmy's office late one
night just after Jimmy's death.
3. The Court's Order
The judge granted the motion on
"no-evidence" grounds. The order states, in relevant part, as
follows:. . . [on the issue that the will was not executed with the necessary
formalities and solemnities] The evidence submitted by the Contestant creates
no more than a surmise or suspicion and does not raise any issues of material
fact. . . . The summary judgment evidence produced by the Contestant fails to
present more than a scintilla of probative evidence to raise a genuine issue of
material fact regarding pages 1 and 2 being forgeries . . . Contestant . . .
offers no probative evidence that decedent was mistaken as to the contents of
the will. . . . Evidence presented creates no more than a mere surmise or
suspicion of lack of testamentary capacity. . . . Contestant presents no
probative evidence of misrepresentation or fraud.
After careful review of all probative
evidence and weighing every reasonable inference in favor of the non-movant,
the Court finds that the evidence is mere speculation, surmise and suspicion
and does not rise to the level that would enable reasonable and fair-minded
people to differ in their conclusions. Summary judgment shall be granted on all
issues.
C. Standard of Review for
"No-Evidence" Motion for Summary Judgment
When a motion for sum