in the Matter of the Estate of Elwin Ross Standefer , 530 S.W.3d 160 ( 2015 )

Opinion filed August 21, 2015
In The
Eleventh Court of Appeals
__________
No. 11-14-00221-CV
__________
IN THE MATTER OF THE ESTATE OF
ELWIN ROSS STANDEFER, DECEASED
On Appeal from the County Court at Law No. 2
Ector County, Texas
Trial Court Cause No. 21666-14
OPINION
Nedinah Davis, Appellant, filed an Application For Independent
Administration and Letters of Administration in which she alleged that her father,
Elwin Ross Standefer,1 died intestate. Another of Elwin’s adult children, Randy
Standefer, Appellee, subsequently filed an Application to Probate Will and for
Issuance of Letters Testamentary to probate a copy of what he claimed was
Elwin’s original, unrevoked will. After a hearing, the trial court ruled in favor of
1
To aid in clarity, we will refer to the deceased as Elwin and to his children by their first names.
Randy and admitted the copy of Elwin’s will to probate. Appellant presents six
issues on appeal. We affirm.
I. Evidence at the Hearing
Elwin died in Odessa in January 2014 at the age of seventy-five. He was
survived by three adult children: his daughter, Nedinah, and his two sons, Randy
and Terry Standefer. Elwin owned all the stock in his company, Ross Hot Shot
and Forklift Services (Hot Shot), along with other assets. Elwin executed a will in
September 2012, which purported to leave his entire estate to Randy and Terry and
leave nothing to Nedinah.
Randy testified that in September 2012 Elwin told him that he had executed
a will. Randy, knowing this, searched for the will after his father’s funeral. Randy
looked in his father’s lockbox, a place where Randy said his father would normally
keep important papers, but he could not find it. He also went to the office of Kathy
Witt, Elwin’s bookkeeper and accountant, to see if she had the will. Kathy did not
have the original, but she gave Randy her last remaining photocopy of the original,
signed will. When asked if he had diligently searched for the will, Randy
answered in the affirmative.
Randy also testified that “anyone who actually worked with [his] dad”
probably had access to the lockbox. Someone had gained access to the lockbox
and had taken the title to an antique car that Elwin owned. Elwin had confronted
his girlfriend’s daughter, Tammie Werner, about the missing title, as she had
access to the lockbox. After being confronted about the title, Tammie returned it
to Elwin with her signature scratched out. Randy feared that Tammie, or whoever
accessed the lockbox to take the car title, may have taken the original will at the
same time.
2
Casey Davis worked for Elwin at Hot Shot for nine years as a truck driver
and office manager. Casey said that Elwin would have kept his will in his
lockbox.2 She said she saw an envelope entitled “Last Will and Testament” in the
lockbox. Casey testified that she, Elwin, Randy, and Tammie all had access to the
lockbox. Casey also knew about the car title that was taken. Based upon someone
accessing the lockbox and taking the car title, Casey agreed that someone could
have taken the original copy of the will at the same time.
Nedinah was Elwin’s daughter and Randy’s sister. Nedinah had previously
worked for her father at Hot Shot, and Elwin had even bought Nedinah and her
husband a house to live in. Approximately four to five years prior to the hearing,
however, Nedinah and her father had a disagreement. Because of the
disagreement, her father immediately fired her from her job at Hot Shot, and she
and her husband moved out of the house. After that, Nedinah said that she and
Elwin “didn’t have much of” a relationship.
Kathy worked as Elwin’s bookkeeper and accountant from 2010 forward.
She testified that she prepared the will at issue for Elwin, and despite the word
“copy” on the will, she agreed that the will offered by Randy was a true and correct
copy of the original document she drafted and witnessed Elwin sign. She claimed
that Elwin never asked her to draft another will for him after that. Finally, Kathy
agreed that the will left nothing to Nedinah and that Elwin made it clear that was
his intention.
II. Issues Presented
Appellant contends, in six issues, that the evidence was legally and factually
insufficient to support the trial court’s ruling that Randy met his burden of proof
2
Although Casey initially used the term “safe,” it appears that her reference was to the lockbox
we have previously mentioned. We will therefore refer to the safe as a lockbox in order to avoid
confusion.
3
under Sections 256.152, 256.153, and 256.156 of the Texas Estates Code. TEX.
EST. CODE ANN. §§ 256.152, 256.153, 256.156 (West 2014). Appellant outlines
two issues for each section, but then addresses these issues collectively throughout
the brief. We construe Appellant’s briefing to raise two challenges under Section
256.152 and three challenges under Section 256.156. We also note that Appellant
has one challenge under Section 256.153. We will address the challenges under
Section 256.152 first, followed by the challenges under Section 256.156, and then
address the challenge under Section 256.153.
III. Standard of Review
The trial court’s findings of fact have the same weight as a jury’s verdict; we
review the legal and factual sufficiency of the evidence used to support them just
as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297
(Tex. 1994). We apply the same standards we do when reviewing the legal and
factual sufficiency of the evidence supporting a jury’s answer to a jury question.
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina, 881 S.W.2d at 297.
We review a trial court’s conclusions of law de novo. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If we determine that a
conclusion of law is erroneous but that the trial court rendered the proper
judgment, the error does not require reversal. Id.
When we conduct a legal sufficiency review, we review the evidence in a
light that supports the disputed finding and disregard all evidence and inferences to
the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). We “consider
all of the evidence in the light most favorable to the prevailing party, indulging
every reasonable inference in that party’s favor.” In re Estate of Rhea, 257 S.W.3d
787, 790 (Tex. App.—Fort Worth 2008, no pet.) (citing Associated Indem. Corp. v.
CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998)). If more than a
4
scintilla of evidence supports the challenged finding, the no-evidence challenge
must fail. See Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.
2003); Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 588 (Tex. 1999).
For a factual sufficiency review, we examine all the evidence in the record,
both for and against the lower court’s findings. Ortiz, 917 S.W.2d at 772. We
must consider and weigh all such evidence in a neutral light. Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). When the trial court
sits as factfinder, it is the sole judge of the witnesses’ credibility, and it may
believe one witness over another; a reviewing court may not impose its own
opinion to the contrary. Id. at 761; see also City of Keller v. Wilson, 168 S.W.3d
802, 822 (Tex. 2005). If the evidence would enable reasonable and fair-minded
people to differ in their conclusions, then jurors are allowed to do so. City of
Keller, 168 S.W.3d at 822. We do not substitute our judgment for that of the trier
of fact, so long as the evidence falls within this zone of reasonable disagreement.
Id. When we consider and weigh the evidence, we will set aside the judgment only
if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
IV. Analysis
Appellant argues, under Section 256.152, that there was legally and factually
insufficient evidence to prove that (1) Elwin did not revoke the will and (2) Elwin
executed the will with the required formalities and solemnities. Appellant argues,
under Section 256.156, that there was legally and factually insufficient evidence to
prove (1) the original will could not, by reasonable diligence, be produced;
(2) credible testimony proved the contents of the will; and (3) the will was self-
proving. Appellant also argues that there were no subscribing witnesses who
testified, as required under Section 256.153.
5
A. First Challenge: Elwin did not Revoke the Will
Appellant argues that the evidence failed to prove that Elwin did not revoke
the will, as required by Section 256.152(a)(1). See EST. § 256.152(a)(1). When
the original will cannot be located and the will was last seen in the testator’s
possession, a presumption arises that the testator destroyed the will with the intent
of revoking it. Hibbler v. Knight, 735 S.W.2d 924, 927 (Tex. App.—Houston [1st
Dist.] 1987, writ ref’d n.r.e). The proponent must overcome this presumption by a
preponderance of the evidence. In re Estate of Glover, 744 S.W.2d 939, 940 (Tex.
1988). One can meet this burden with evidence of circumstances contrary to the
presumption or with evidence that some other person fraudulently destroyed the
will. In re Estate of Turner, 265 S.W.3d 709, 713 (Tex. App.—Eastland 2008, no
pet.) (citing In re Estate of Capps, 154 S.W.3d 242, 245 (Tex. App.—Texarkana
2005, no pet.)). Evidence that the decedent recognized his will’s continued
validity and had continued affection for the primary beneficiary of his will, without
evidence that he was dissatisfied with the will or had any desire to change or
cancel it, is sufficient proof of circumstances contrary to the presumption. Id.
Kathy testified that Elwin took the will with him after he executed it at her
office, but the original will could not be found after Elwin’s death. Casey testified
that she saw an envelope entitled “Last Will and Testament” in Elwin’s lockbox.
At least four people had access to the lockbox where Elwin had likely kept his will
with other important documents. Someone had accessed the lockbox in the past
without permission and had taken the title to an antique car. Randy and Casey
testified that Tammie had access to the lockbox. When confronted about the
missing car title, Tammie returned it to Elwin with her signature scratched out.
Randy and Casey acknowledged that whoever took the car title, whether it was
Tammie or someone else, may have taken the original will, or someone may have
6
taken it at a later time. This evidence is more than a scintilla of evidence to
overcome the presumption that Elwin revoked the will. See In re Estate of Perez,
324 S.W.3d 257, 261–62 (Tex. App.—El Paso 2010, no pet.); In re Estate of
Caples, 683 S.W.2d 741, 742–43 (Tex. App.—Corpus Christi 1984, writ ref’d
n.r.e.).
Kathy drafted the will for Elwin and said that Elwin clarified that he did not
want Appellant to get anything from his estate. Elwin maintained a close and
affectionate relationship with Randy, who was one of the two primary beneficiaries
of the will. Randy worked with his father at Hot Shot and saw him “all the time.”
Appellant admitted that she “didn’t have much of” a relationship with her father
and that she had not talked to him for at least one year prior to his death. Kathy
testified that Elwin never asked her to modify the will or to draft a new one. Elwin
also told Randy and Terry that he had executed a will, but there was no testimony
or evidence that Elwin told them he had modified it, revoked it, or executed
another one.
The will offered by Randy made no provision for Tammie’s mother, Wilma,
who was also Elwin’s girlfriend. The will also indicated that Elwin was not
married. All three of Elwin’s adult children testified either that Elwin was not
married or that they had no knowledge that he was married when he died. Wilma
nevertheless filed a Notice of Appearance of Surviving Spouse in the trial court
“through her attorney-in-fact Tammie Werner,” in an attempt to establish
inheritance rights. At the hearing, Randy did not explicitly accuse Tammie of
accessing the lockbox and stealing the will. Rather, he acknowledged that it “was
a possibility” she had done so. Appellant argues that the evidence that someone
had accessed Elwin’s lockbox and taken the car title made it illogical for Elwin to
keep storing important documents in the same location. There was no direct
7
evidence that Tammie took the will, but Tammie’s mother would stand to benefit
from Elwin’s estate if she proved that she was married to Elwin, and Tammie may
have thought that destroying the will would further that goal.
Randy and Terry admitted that they did not see their father sign the will;
Terry acknowledged that he never saw the will. Casey admitted that, even though
she saw an envelope labeled “Last Will and Testament,” she never saw what was
inside the envelope. And although there was evidence of Elwin’s continued
affection for Randy, there was no evidence regarding Terry’s relationship with
Elwin, and Terry was the other of the two primary beneficiaries under the will.
We have reviewed all the evidence and conclude that the trial court could
have found that the presumption of revocation was rebutted by the evidence
indicating that the will was fraudulently destroyed or by the evidence showing
circumstances contrary to the presumption. See Turner, 265 S.W.3d at 715; see
also Perez, 324 S.W.3d at 261–62; Caples, 683 S.W.2d at 742–43. We hold there
was legally and factually sufficient evidence from which the trial court could have
found that Elwin did not revoke his will. We overrule Appellant’s challenge under
Section 256.152(a)(1).
B. Second Challenge: Elwin Executed the Will with the Required
Formalities and Solemnities
Appellant argues that Randy failed to prove that Elwin executed the will
with the requisite formalities and solemnities. See EST. § 256.152(a)(2)(A).
Section 256.152(a)(2)(A) requires a will proponent, with a will that is not self-
proved, to prove that the testator “executed the will with the formalities and
solemnities and under the circumstances required by law to make the will valid.”
Id. Once a proponent admits a self-proved will into evidence, however, he has
prima facie established that the will was properly executed. Bracewell v.
Bracewell, 20 S.W.3d 14, 26 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
8
The will offered by Randy was self-proved, so Randy prima facie
established that the will was properly executed. Appellant attempts to rebut the
prima facie evidence and argues that there are “discrepancies” with the will and,
therefore, that the self-proving affidavit was ineffective and the will was not
properly executed. Appellant asserts that (1) Elwin’s type-written name on the will
was “Elwin Ross Standefer,” but the signature above the typed name reads “Ross
Standefer,” and (2) Elwin did not sign the will, but, rather, his signature came from
a stamp of his signature. For these reasons, Appellant argues, she rebutted the
prima facie evidence and proved that the will was not properly executed.
1. The Signature was Sufficient
A will must be signed by the testator in person or by another person for the
testator in the testator’s presence and under the testator’s direction. See EST.
§ 251.051. Texas courts have been lenient regarding the location and form of a
“signature.” Luker v. Youngmeyer, 36 S.W.3d 628, 630 (Tex. App.—Tyler 2000,
no pet.) (citing Mortgage Bond Corp. of N.Y. v. Haney, 105 S.W.2d 488, 491 (Tex.
Civ. App.—Beaumont 1937, writ ref’d) (approving an “X” as a sufficient signature
on an attested will)). Importantly, it is “necessary that the maker intend that his
name or mark constitute a signature, i.e., that it expresses approval of the
instrument as his will.” Id. A signature by initials executes a will if the instrument
is testamentary in character. Trim v. Daniels, 862 S.W.2d 8, 10 (Tex. App.—
Houston [1st Dist.] 1992, writ denied).
Kathy testified that, before Elwin executed the will, she explained its terms
to him point by point. She said that Elwin wanted to sign the will, that she
witnessed Elwin sign the will, and that he did so with the intent to make it his will.
This is some evidence that Elwin signed his will. See In re Estate of Romancik,
281 S.W.3d 592, 597 (Tex. App.—El Paso 2008, no pet.).
9
Appellant counters that the signature reads “Ross Standefer” instead of
“Elwin Ross Standefer” and, therefore, is insufficient. However, there is no
requirement that Elwin’s signature match exactly the type-written version of his
name, as Appellant would have us hold, and the omission of “Elwin” does not
render the signature insufficient. See Luker, 36 S.W.3d at 630; see also Romancik,
281 S.W.3d at 597.
2. Elwin Signed the Will
Appellant argues that the will did not have Elwin’s handwritten signature on
it but, rather, a stamp of Elwin’s signature. She further argues that, because there
is no evidence that Elwin directed someone in his presence to stamp his signature
on the will, the will was not validly signed. Kathy testified that she witnessed
Elwin sign the will and that the copy portrayed his written signature, not a stamp of
his signature. Casey testified that Elwin had a stamp of his signature made but that
Elwin destroyed it in 2010 or 2011, which was before Elwin executed the will.
This is some evidence that Elwin signed, rather than stamped, his signature on the
will. See Brown v. Traylor, 210 S.W.3d 648, 668–69 (Tex. App.—Houston 2006,
no pet.).
Appellant argues that Elwin had a stamp of his signature made, that “the ink
reflected on [Elwin’s] alleged signatures on the [c]opy is undisputedly much darker
than the ink reflected on the other individuals’ signatures,” and that the letters are
much “thicker” too. Appellant’s daughter, Lauren Davis, was familiar with
Elwin’s signature, and she testified that the signature portrayed on the will was not
his. Appellant argues this evidence showed that the signature came from a stamp.
But, as Terry pointed out, he does not know if Elwin and the witnesses signed with
the same pen. The evidence was in dispute about Elwin’s signature on the will and
whether it was accomplished by his hand or by a stamp of his signature.
10
The trial court could believe or disbelieve any witness, and the trial court
found that the will was properly executed and that the self-proving affidavit was
valid. We hold the evidence was legally and factually sufficient to prove that
Elwin signed the will and that he executed the will with the proper formalities and
solemnities. We overrule Appellant’s challenge under Section 256.152(a)(2)(A).
C. Third Challenge: The Will Could not by any Reasonable Diligence
be Produced
Appellant argues that there was insufficient evidence to meet the
requirement of Section 256.156(b)(1) that “the cause of the nonproduction of a will
not produced in court must be proved, which must be sufficient to satisfy the court
that the will cannot by any reasonable diligence be produced.” EST.
§ 256.156(b)(1). Section 256.156 applies when the original will cannot be
produced in court. See In re Estate of Catlin, 311 S.W.3d 697, 700 (Tex. App.—
Amarillo 2010, pet. denied) (noting that Section 256.1563 “establishes a method by
which a copy of a will may be probated when the original cannot be found”);
Garton v. Rockett, 190 S.W.3d 139, 145 (Tex. App.—Houston [1st Dist.] 2005, no
pet.) (noting that “[a] party seeking to probate a copy of a will, rather than the
original, must proceed under section [256.156 of the Estates Code]”).4
In In re Estate of Capps, there was testimony that, despite a thorough search
of the decedent’s house, the original will could not be located. 154 S.W.3d at 244.
The decedent “kept in the house a metal box that typically contained her important
records and, though that box was found and searched, the will was not found there,
3
The court referred to Section 85 of the former Texas Probate Code, which is now Section
256.156 of the Estates Code. The former Probate Code was recodified into the Estates Code, without
substantive alteration, effective January 1, 2014. See EST. § 256.156.
4
But see In re Estate of Jones, 197 S.W.3d 894, 902 (Tex. App.—Beaumont 2006, pet.
denied) (when an accurate photocopy of an otherwise valid, unrevoked “lost” will is introduced
into evidence, Section 256.156 does not apply).
11
either.” Id. Two separate photocopies of the will were produced in court. Id. The
court held that “the material evidence was sufficient to overcome the absence of
the original will, since the material evidence sufficiently (A) showed the cause of
nonproduction and (B) showed the will was not revoked (and rebutted the
presumption that it was).” Id.
Randy agreed that he had diligently searched for the will. He testified that
he looked in his father’s lockbox, where his father normally kept important papers,
but that the will was not there. He went to Kathy’s office to see if she had the will,
but she only had a photocopy of it. Kathy gave him the copy, and he subsequently
introduced it into evidence at the hearing. We previously concluded there was
sufficient evidence from which the factfinder could have found that the original
will was fraudulently destroyed and not revoked, which explained its
nonproduction. See Turner, 265 S.W.3d at 715; see also Perez, 324 S.W.3d at
261–62; Caples, 683 S.W.2d at 742–43. We hold the evidence was legally and
factually sufficient to show that Randy could not by any reasonable diligence
produce the will. We overrule Appellant’s challenge under Section 256.156(b)(1).
D. Fourth Challenge: Credible Testimony Proved the Contents of the
Will
Appellant argues that the evidence failed to meet the requirement of
Section 256.156(b)(2) that “the contents of the will must be substantially proved by
the testimony of a credible witness who has read either the original or a copy of the
will, has heard the will read, or can identify a copy of the will.” EST.
§ 256.156(b)(2). While it is unnecessary to establish all of the provisions of an
alleged lost will literally or verbatim, it is, however, necessary to establish its
material contents to some degree of certainty. Garton, 190 S.W.3d at 145 (citing
Cason v. Taylor, 51 S.W.3d 397, 409 (Tex. App.—Waco 2001, no pet.)).
12
Kathy testified that she met with Elwin in person to discuss his wishes
related to his will. Kathy then drafted a will for Elwin based upon their
conversation. Elwin returned to Kathy’s office, and she went through the will she
drafted point by point before he signed it. She testified she knew of the will’s
contents because she had drafted it. She also testified that the copy introduced into
evidence was an exact copy of the original.
Appellant argues that Kathy was not credible and asserts, correctly, that
Kathy is not an attorney and engaged in the unauthorized practice of law when she
drafted the will. Appellant further argues that Kathy’s role as drafter of the will
and notary of Elwin’s and the witnesses’ signatures is more evidence of her lack of
credibility, but Appellant cites no authority to support this proposition. The trial
court believed Kathy, and her testimony was sufficient for Randy to meet his
burden of proof under Section 256.156(b)(2). We overrule Appellant’s challenge
under Section 256.156(b)(2).
E. Fifth Challenge: The Will was Self-Proved
Appellant argues that there was insufficient evidence under Section
256.156(a), which requires that “[a] will that cannot be produced in court must be
proved in the same manner as provided in Section 256.153.” EST. § 256.156(a).
Section 256.153, however, applies to a will “that is not self-proved.” EST.
§ 256.153(a). And a “will that is self-proved . . . is not required to have any
additional proof . . . to make the will valid.” EST. § 256.152(b). We must decide
whether Randy had to meet the requirements of Section 256.153, although he
presented a self-proved will.
The court in Bracewell was presented with the same issue we face now.
There, the court concluded that a valid self-proving affidavit attached to a
photocopy of a will made it unnecessary for the will’s proponent to meet the
13
requirements of Section 256.153.5 Bracewell, 20 S.W.3d at 26. We agree. The
trial court found that the will was self-proved, and we held that Appellant’s
arguments in regard to the validity of Elwin’s signatures did not invalidate the self-
proving affidavit. Therefore, because the will was self-proved, Randy met his
burden of proof under Section 256.156(a). We overrule Appellant’s challenge
under Section 256.156(a).
F. Sixth Challenge: Section 256.153 is Inapplicable Because the Will
was Self-Proved
Appellant asserts that there is legally and factually insufficient evidence to
meet the requirement of Section 256.153 that requires one or more subscribing
witnesses to testify concerning a will that is not self-proved. See EST.
§ 256.153(b). As we have held that the will was self-proving, this section is
inapplicable. See Bracewell, 20 S.W.3d at 26. We overrule Appellant’s challenge
under Section 256.153.
V. Conclusion
After reviewing the record, we hold that the evidence was legally and
factually sufficient to support the findings made by the trial court under Sections
256.152, 256.153, and 256.156 of the Texas Estates Code. Therefore, the trial
court did not err when it admitted the copy of Elwin’s will for probate.
VI. This Court’s Ruling
We affirm the order of the trial court.
August 21, 2015 MIKE WILLSON
Panel consists of: Wright, C.J., JUSTICE
Willson, J., and Bailey, J.
5
See Footnote No. 3. In Bracewell, the court referred to Section 84 of the Probate Code, which is
now Sections 256.152 and 256.153 of the Estates Code. 20 S.W.3d at 26; see also EST. §§ 256.152,
256.153.
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