in the Estate of Wynell N. Klutts

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00356-CV
___________________________
IN THE ESTATE OF WYNELL N. KLUTTS, DECEASED
On Appeal from the County Court
Hood County, Texas
Trial Court No. P08257
Before Sudderth, C.J.; Gabriel and Wallach, JJ.
Concurring and Dissenting Memorandum Opinion by Justice Wallach
CONCURRING AND DISSENTING MEMORANDUM OPINION
I concur in the judgment and reasoning of the majority opinion regarding the
reversal of the trial court’s judgment on the claim of undue influence. For the reasons
set forth below, I respectfully dissent from the majority opinion reversing the trial
court’s judgment finding testamentary capacity for the 2008 Will. I would affirm the
trial court’s judgment that Michael proved that the 2008 Will was executed with the
requisite formalities, that Wynell had testamentary capacity at the time of the 2008
Will’s execution, and that the 2008 Will revoked the 2007 Will.1
I. Mike proved as a matter of law that the 2008 Will was executed
with the requisite formalities, that Wynell had testamentary
capacity at the time of its execution, and that the 2008 Will revoked
the 2007 Will.
A. The Requisite Formalities
With respect to proving the execution of the 2008 Will according to the
requisite formalities, Mike introduced a copy of the 2008 Will, authenticated by the
affidavits of will drafter Donald Barley and his wife and will witness Sandra, and also
introduced the deposition testimony of those individuals and of will witness Marti
Luttrall and notary public Linda Soloman. The copy of the 2008 Will contains an
affidavit that meets the requirements for a self-proved will under the Texas Estates
Code. See Tex. Est. Code Ann. §§ 251.101–.105. Other than the contest over
whether Wynell had testamentary capacity on the date of execution, there is no
1
The parties are identified by the same names as in the majority opinion.
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contest about the copy of the will being forged, fraudulent, incomplete, or altered.
Under these circumstances, the validity of the 2008 Will with respect to the formalities
of its execution, other than testamentary capacity, is uncontroverted. See In re Estate of
Jones, 197 S.W.3d 894, 900–01 (Tex. App.—Beaumont 2006, pet. denied).
B. Revocation of Prior Wills
The 2008 Will expressly revoked all previous wills.
C. Testamentary Capacity
The core dispute centers on whether Wynell’s testamentary capacity was
established as a matter of law as related to the 2008 Will.
1. Applicable Law
An applicant for the probate of a will must prove, among other facts, that the
testatrix had testamentary capacity at the time of the will’s execution and that the
testatrix did not revoke the will. Tex. Est. Code Ann. § 256.152; Ashley v. Usher, 384
S.W.2d 696, 698 (Tex. 1964) (construing predecessor to estates code section 256.152
and stating that “the burden of establishing that a will has not been revoked is placed
by this statute on the proponent of the will sought to be probated”). A written will
may be revoked by “a subsequent will, codicil, or declaration in writing that is
executed with like formalities.” Tex. Est. Code Ann. § 253.002. On the other hand, a
party seeking revocation by a subsequent will must prove “that the subsequent
instrument was executed at a time when the [maker] was of sound mind and disposing
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memory.” Harkins v. Crews, 907 S.W.2d 51, 58 (Tex. App.—San Antonio 1995, writ
denied).
Therefore, it was Michael’s burden to prove as a matter of law (1) that Wynell
had testamentary capacity on July 24, 2008—the date she signed the 2008 Will, (2)
that the will was executed with the requisite formalities, and (3) that the will revoked
all prior wills. See Tex. Est. Code Ann. § 256.152; Harkins, 907 S.W.2d at 58.
Additionally, because Paula and Donna had moved to have the 2007 Will admitted to
probate, they had the burden to prove that Wynell had not revoked the 2007 Will. See
Tex. Est. Code Ann. § 256.152; Estate of Luce, No. 02-17-00097-CV, 2018 WL
5993577, at *2 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.); Just v.
Denson, No. 14-87-00542-CV, 1988 WL 83830, at *3 (Tex. App.—Houston [14th
Dist.] Aug. 11, 1988, writ denied) (not designated for publication); Betts v. Betts, 395
S.W.2d 673, 676 (Tex. App.—Amarillo 1965, no writ). In Jan, Donna, and Paula’s
probate application, they pleaded for a judgment setting aside the 2008 Will and the
2010 Will on the bases that Wynell lacked testamentary capacity when she signed
them.
Michael sought traditional summary judgment asking the trial court to deny the
2007 Will’s admission to probate because the 2008 Will revoked the 2007 Will. He
therefore had to prove as a matter of law that Wynell had testamentary capacity at the
time she executed the 2008 Will, and meeting this burden would negate as a matter of
law Jan, Paula, and Donna’s lack-of-capacity claim. See IHS Cedars Treatment Ctr. of
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DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Cathey v. Booth, 900 S.W.2d
339, 341 (Tex. 1995).
The proper means of analyzing whether Wynell had testamentary capacity on
July 24, 2008 was summarized by this court in Horton v. Horton, 965 S.W.2d 78, 85–86
(Tex. App.—Fort Worth 1998, no pet.):
In a will contest case, the proper inquiry is whether the testator had
testamentary capacity on the day the will was executed. See Lee [v. Lee],
424 S.W.2d [609,] at 611 [(Tex. 1968)]. Although this is the ultimate
question, the court may also look to the testator’s state of mind at other
times if these times tend to show his state of mind on the day the will
was executed. See id.; Chambers v. Chambers, 542 S.W.2d 901, 907 (Tex.
App.—Dallas 1976, no writ). Such evidence may be considered only if it
demonstrates that a condition affecting the individual’s testamentary
capacity was persistent and likely present at the time the will was
executed. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). Thus,
to successfully challenge a testator’s mental capacity with circumstantial
evidence from time periods other than the day on which the will was
executed, the will contestants must first establish that the evidence
offered indicates a lack of testamentary capacity. See id. In addition, they
must also demonstrate that the evidence is probative of the testator’s
capacity (or lack thereof) on the day the will was executed. See id.
Furthermore, the evidence provided by the will contestants must be of a
satisfactory and convincing character, and probate will not be set aside
on the basis of evidence that creates only a suspicion of mental
incapacity. See Lee v. Lee, 413 S.W.2d 931, 934 (Tex. Civ. App.—Fort
Worth 1967), aff’d in part, rev’d on other grounds in part, 424 S.W.2d 609
(Tex. 1968).
In the present case, there is no direct evidence that [the testator]
lacked testamentary capacity on the day the will was executed.
Nevertheless, Appellees contend that they conclusively established this
fact through circumstantial evidence from days other than December 30,
1993. Specifically, they refer to the testimony at trial that tended to
show that [the testator] was extremely ill on December 24, 1993, that the
cancer had spread to his brain, that he was taking medication to control
his pain, and that he hallucinated or was disoriented at times.
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Evidence of physical infirmities, without more, does not tend to
prove that a testator is incapable of knowing his family or his property,
or understanding the effect of signing the will. The fact that a testator
consumed pain medication on the day he executed the will in question is
likewise insufficient to prove a lack of testamentary capacity, without
some evidence that the medication rendered the testator incapable of
knowing his family, his estate, or understanding the effect of his actions.
In this case, Appellees offered no evidence that [the testator]’s pain
medication or physical problems impaired his testamentary capacity. As
a result, the only evidence in this case that could possibly support the
jury’s finding that [the testator] lacked testamentary capacity is the
testimony that [the testator] was hallucinating and disoriented at times.
As stated above, it is not enough to show that a testator lacked
testamentary capacity on some days without also showing that the
condition probably persisted on the day the will was executed. See
Croucher, 660 S.W.2d at 57.
2. Analysis
Michael contends that proof of execution of a self-proving will is prima facie
proof of testamentary capacity and entitles him to summary judgment on that issue.
In re Estate of Graham is illustrative. 69 S.W.3d 598, 604–06 (Tex. App.—
Corpus Christi 2001, no pet.). Graham involved a will contest over the admission of a
copy of a will to probate. As noted by the court,
[w]e first address the will contestants’ claim that Mr. Graham’s will was
not executed with the “formalities and solemnities required by the Texas
Probate Code.” Section 59 of the Texas Probate Code sets forth the
requisites of a will. It states that, except where otherwise provided by
law, a will must be (1) in writing, (2) signed by the testator[,] and (3) be
attested by two or more credible witnesses above the age of fourteen
years who shall subscribe their names thereto in their own handwriting
in the presence of the testator.
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Id. at 603 (internal citations omitted). In Graham, the will proponents offered proof of
the signing and witnessing of the self-proving will in compliance with the former
Texas Probate Code through the affidavits of one of the witnesses and the notary to
the will. Id. Because the will was authenticated through these affidavits and because
the will met the requirements for a self-proving will, the proponents made a “prima
facie” showing of the “validity of its execution.” Id. at 605. However, despite a prima
facie showing of the will’s execution, the will proponent retained the burden of proof
on the issue of testamentary capacity until the will was admitted to probate. Id. at
605–06.
In this case, Michael’s proof included a copy of the 2008 Will (including a self-
proving affidavit that met the requirements of Texas Probate Code section 59(a)–(c))
authenticated by the affidavits of Donald, the drafting attorney, and Sandra, a witness
to the will. Thus, under Graham, Michael made a prima facie showing of the validity
of the 2008 Will’s execution. However, the 2008 Will was not admitted to probate, so
Michael retained the burden of proof to establish Wynell’s testamentary capacity on
July 24, 2008.
Michael’s evidence of Wynell’s testamentary capacity on July 24, 2008, came
from four lay witnesses—Donald, Sandra, Luttrall, and Soloman—each of whom had
personal contact with Wynell on July 24, 2008.2 They offered testimony that Wynell
2
Over Appellants’ objections, the trial court admitted the affidavit testimony of
forensic psychiatrist Dr. Lisa Clayton, who concluded that Wynell had testamentary
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was of sound mind, that she had the mental capacity necessary to execute her will and
that she understood what she was doing and the changes that she was making.
Donald had been Wynell’s attorney and CPA for many years and had prepared
previous legal and accounting documents for her and her deceased husband Fred over
the years. Sandra considered herself a friend of Wynell’s because she had previously
had encounters with her in the law office as well as outside the law office. Appellants
did not offer any direct evidence to contradict Wynell’s capacity on July 24, 2018.
Appellants did attempt to cast aspersions on the credibility of Donald’s
testimony and that of his staff but offered no authority that such aspersions were
sufficient to raise a fact issue to defeat a summary judgment. For example, they
capacity on July 24, 2008. She also concluded that Wynell’s medical records did not
reveal conditions or treatments that would have diminished her capacity. Dr.
Clayton’s affidavit did not attach copies of the records she reviewed. Appellants’
objection to such failure should have been sustained because Rule 166a(f) requires
that “[s]worn or certified copies of all papers or parts thereof referred to in an
affidavit shall be attached thereto or served therewith.” Tex. R. Civ. P. 166a(f). While
there is a dispute among the courts of appeals as to whether this failure is a defect in
form or in substance, there is no question that it is a defect. See DeLarosa v. Stokes,
No. 03-12-00125-CV, 2012 WL 3600874, at *6 (Tex. App.—Austin Aug. 17, 2012, no
pet.) (mem. op.); Lee v. Lee, 43 S.W.3d 636, 640 (Tex. App.—Fort Worth 2001, no
pet.) (holding that failure to attach documents was a defect in substance); Gorrell v.
Tex. Utils. Elec. Co., 915 S.W.2d 55, 60 (Tex. App.—Fort Worth 1995, writ denied); cf.
Martin v. Durden, 965 S.W.2d 562, 565 (Tex. App.—Houston [14th Dist.] 1997, pet.
denied) (holding that failure to attach documents was a defect in form). Further,
affidavits that do not have such records attached will not support a summary
judgment on appeal. Nat. Gas Clearinghouse v. Midgard Energy Co., 23 S.W.3d 372, 379
(Tex. App.—Amarillo 1999, pet. denied); Ceballos v. El Paso Health Care Sys., 881
S.W.2d 439, 444–45 (Tex. App.—El Paso 1994, writ denied). Therefore, such
testimony is not considered for purposes of this discussion.
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argued that Donald had difficulty recognizing Alzheimer’s disease in his own mother
and that maybe a jury would consider him not adept at detecting a lack of
testamentary capacity in his client. Not only does this argument assume that Wynell
had a lack of testamentary capacity to be observed on July 24, 2008, but there is also
no evidence in the record that Wynell had any mental deficiencies on that date. Such
aspersions should not create a fact issue for summary-judgment purposes. A solemn
testament executed under the formalities required by law by one mentally capable of
executing it should not be set aside upon a bare suspicion of wrongdoing. Estate of
Davis v. Cook, 9 S.W.3d 288, 293 (Tex. App.—San Antonio 1999, no pet.); Garza v.
Garza, 390 S.W.2d 45, 47 (Tex. App.—San Antonio 1965, writ ref’d n.r.e.); see also In re
Estate of Flores, 76 S.W.3d 624, 629 (Tex. App.—Corpus Christi–Edinburg 2002, no
pet.).
In addition to Michael’s direct evidence regarding Wynell’s capacity on July 24,
2008, the circumstantial evidence properly before the trial court establishes the
existence of Wynell’s testamentary capacity on July 24, 2008. The uncontroverted
evidence established that, prior to July 24, 2008, Wynell was actively serving as
independent executrix of Fred’s estate and working with her attorney Ron Adams to
transfer assets worth approximately $1,600,000 to each of the four children. This plan
was summarized in a letter from Adams to Donald in December 2007. These
distributions and transfers totaled approximately $6,400,000 of Wynell’s assets. The
documents effectuating this plan, whether executed in her individual or fiduciary
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capacity, demonstrate Wynell’s detailed knowledge of her assets and the natural
objects of her bounty and her ability to make and execute complex decisions
concerning her estate. In this regard, it is worth noting that it takes less mental
capacity to establish testamentary capacity than legal capacity to make contracts. See
Hamill v. Brashear, 513 S.W.2d 602, 607 (Tex. App.—Amarillo 1974, writ ref’d n.r.e.).
These documents reflect that the transfers continued at least through April 23, 2008.
Appellants, as recipients of Wynell’s generosity, have not claimed that she lacked
capacity between December 2007 and April 23, 2008. To the contrary, it can be
reasonably inferred only that Wynell’s capacity to make complex decisions was
recognized by her family and her lawyers. Furthermore, there is no evidence that was
properly before the trial court that demonstrates any decline in Wynell’s mental status
between December 2007 and July 24, 2008.
Over Michael’s proper hearsay objections, the trial court admitted several of
Wynell’s purported medical records, which Appellants contend raised fact issues
regarding Wynell’s testamentary capacity. Initially, the objections to these documents
should have been sustained, so they were not properly before the trial court for
consideration. See In re Estate of Anderson, Nos. 13-07-00112-CV, 13-07-00131-CV,
2008 WL 3894653, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 25, 2008, pet.
denied) (mem. op.). However, assuming that these records were properly admitted,
they do not meet the test established in Horton. See 965 S.W.2d at 85–86. There is no
evidence that any of the conditions or medications referenced in the records had any
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impact on her testamentary capacity at any time even remotely relevant to July 24,
2008, if at all. Any such conclusion would be nothing more than mere supposition or
speculation.
Finally, Appellants point to attorney Adams’s concerns that Michael was trying
to interfere in Wynell’s estate decisions in early July 2008 when he delivered to Adams
a letter from Wynell, in which she stated that she wanted to disinherit two of her
stepdaughters. Adams suggested that he send a copy of the proposed new will to
Wynell to review before she came in to sign it in order to see if the new will reflected
her intentions. This testimony does not raise a fact issue regarding testamentary
capacity. If Adams had a concern about Wynell’s capacity, one would not expect that
he would insist on her reviewing the will for conformity with her intent because she
would not have been legally competent to form an intent. Adams was, as her
established attorney, actually soliciting her involvement in the decision-making
process.
Given the direct evidence of Wynell’s testamentary capacity on July 24, 2008,
the lack of any evidence directly controverting her capacity on that date, the extensive
evidence of capacity prior to and almost up to the date of the will, and no
circumstantial evidence around the time of the execution of the will which would
reasonably infer a problem with capacity on July 24, 2008, the granting of the
summary judgment on testamentary capacity was proper. See Pool v. Diana, No. 03-08-
00363-CV, 2010 WL 1170234, at *6–7 (Tex. App.—Austin Mar. 24, 2010, pet. denied)
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(mem. op.); Tomlinson v. Estate of Theis, No. 03-07-00123-CV, 2008 WL 160202 at *2–
3, *10–13 (Tex. App.—Austin Jan. 18, 2008, no pet.) (mem. op.). Accordingly, I
would overrule Appellants’ third issue.
II. Conclusion
I concur in the majority opinion’s disposition of the undue-influence issue.
However, I would affirm the trial court’s judgment that Michael proved that the 2008
Will was executed with the requisite formalities, that Wynell had testamentary capacity
at the time of the 2008 Will’s execution, and that the 2008 Will revoked the 2007 Will;
because the majority holds otherwise on this issue, I respectfully dissent.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: December 19, 2019
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