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Will Contest Case Study: Bedell Part 6

Probate a Will in San Antonio
Case Study: Bedell Part 6

This is the last part in the Bedell Case Study series. In Part 5 we went over Wade’s, the testator, incapacity to execute a new will. In this last part of the series, we will look in depth at the last three arguments estate lawyer Jimmy Carter presented at court to win the Bedell fiduciary litigation case.

Bedell Will Contest Case

“And without question, one of the most exceptionally unusual wills we’ve ever had.”
—Trial Judge

At issue in this particular will contest, San Antonio fiduciary litigation attorney Jimmy Carter established during trial that Appellant did not meet her burden to prove that the July 7, 2005 document was qualified to be admitted to probate as a will that revoked an earlier June 17, 2003 will. This article contains excerpts from publicly available briefs filed with the Fourth Court of Appeals by appellate attorneys, Rob Ramsey and Jimmy Carter. The Court of Appeals affirmed the will contest trial court’s judgment successfully handled to final judgment by San Antonio estate lawyer Jimmy Carter.

View Final Court Opinion

Purported Will Did Not Explicitly Revoke The Previous Will

Deborah did not prove that the 2005 purported will disposed of all of Wade’s property.

As Deborah concedes, “[t]he standard way to revoke a will is by executing a new will that contains an expressed revocation clause, i.e., ‘I revoke all earlier wills and codicils.’” She also admits that this standard procedure did not occur here. Nevertheless, she urges that “if a later will makes a complete disposition of the testator’s property, it revokes all prior wills by implication.”

If.

To bridge the gap between the if and the actual during this trust and estate litigation, Deborah’s San Antonio probate lawyer bore the burden to prove, not merely proclaim, that the 2005 purported will disposed of Wade’s entire estate.

Debra’s lawyer asserted that the 2005 document’s devising specific pieces of property, “down to the linens and kitchen utensils,” constitutes “an uncontroverted fact” that this completely disposed of Wade’s entire estate. Assuming the 2005 document was its evidence, it may be an “uncontroverted fact” that this document identified specific items, but it is also an “uncontroverted fact” that it did not include a general catch-all clause leaving all the “rest and residue” of Wade’s estate to anyone. Therefore, the question of whether the 2005 document “disposed of all of [Wade]’s property” is not, as Deborah’s probate lawyer claims, “an uncontroverted fact.” It is a controverted assertion during the will contest.

The fact that the 2005 document mentioned some items of property does not mean that it disposed of everything. At a minimum, it is equally inferable that there are other items Wade did not mention. Therefore, Deborah’s San Antonio estate lawyer is not entitled to make an inference in her favor in the face of a competing inference that is at least as likely as the one she urges. See Hancock v. Variyam, 400 S.W.3d 59, 70-71 (Tex. 2013) (holding that, under the “equal inference rule,” a factfinder “may not reasonably infer an ultimate fact from meager circumstantial evidence which could give rise to any number of inferences, none more probable than another”).

For example, Deborah testified that Wade was the payee on some promissory notes, which were part of the consideration for land that he had sold. She also stated that the payors had defaulted and that she did not know whether they had ever paid off the notes. This was, at a minimum, some evidence that these notes were part of Wade’s estate, which the purported 2005 will did not dispose of. See Kehoe, 2015 WL 1393535, at *4 (holding that the factfinder is the exclusive judge of the facts).

Deborah’s claim that Robyn’s fiduciary attorney “did not file any pleadings, adduce any evidence or elicit any testimony” that the purported 2005 “was not a complete disposition of Wade’s property” misses the point: because the 2003 will had been probated, the burden was on Deborah to prove that the 2005 document was a valid will, not on Robyn’s attorney to prove it was not. See In re Estate of Flores, 76 S.W.3d 624, 629 (Tex. App.─Corpus Christi 2002, no pet.) (“After [a] will has been probated, the burden of proof is on the contestants to show by preponderance of the evidence that the will is invalid.”).

Regardless, there was evidence that the 2005 document did not invalidate the 2003 will because the 2005 purported will did not entirely dispose of Wade’s estate: there was proof that Wade was the payee of promissory notes, which were not mentioned in the 2005 document. Therefore, at a minimum, there is some evidence that, unlike the 2003 will, the 2005 document did not dispose of all of Wade’s property, and the trial court resolved that fact question against Deborah. See In re Estate of Hutchins, 829 S.W.2d 295, 298 (Tex. App.─Corpus Christi, 1992 writ denied sub. nom.) (“It is the duty of the court in a proceeding to probate a will to determine that the Will being offered for probate meets the statutory requisites.”).

Speculation on the Will’s Execution Date

The 2005 purported will is not properly dated.

As part of her complaint concerning the trial court’s finding that Brown was unable to pinpoint the date of the 2005 document, Deborah’s San Antonio trust & estate lawyer claimed that he testified that Wade signed it on 7 July 2005. Therefore, according to her, “almost eight months after trial, the trial judge obviously had a lapse of memory on this point.” Actually, Deborah’s San Antonio probate lawyer’s brief has a lapse of record cites on this point: Brown, the only person who testified that he had witnessed the purported 2005 will, was merely repeating the date that appeared on that document. He admitted that he had no independent recollection of the date he did so. “That was nine years ago,” he said. “I can’t remember a lot of things nine years ago, specific times and dates.”

Deborah could not remember back that far either: she was unable to name the date she married Wade. “Somewhere around March or the beginning of April” 2005 was her best guess.

According to Deborah, even if the interlineated date on the 2005 document is not valid, that is of no consequence during the probate of a will because a will need not be dated to be valid. But her probate attorney cites no authority to support that assertion. See Tex. R. App. P. 38.1(i) (requiring briefs to cite authority in support of arguments).

“It has been held in Texas that a holographic will need not be dated.” Gunn v. Phillips, 410 S.W.2d 202, 206-07 (Tex. Civ. App.—Houston 1966, writ ref’d n.r.e.). But the purported 2005 document is not holographic.

Furthermore, even hypothetically accepting Deborah’s San Antonio estate attorney’s unsupported assertion that a date is not generally needed on a will, it is nevertheless important to know the date (or dates) that Wade signed the 2005 purported will in this specific instance, particularly in view of Deborah’s testimony that Wade’s mental capacity “snapped” back and forth depending on the date. His testamentary capacity was an issue for the trial court.

Without a specific date on which to measure Wade’s changeable mental capacity, there is no way to tell whether he was capable of executing the 2005 document on the date (or dates) he signed it. At a minimum, the trial court, as the sole fact finder, was entitled to determine that this circumstance posed a question as to the legitimacy of the purported will, which constituted an insurmountable impediment to its requested probate. See Gardner, 229 S.W.3d at 753 (holding that the fact finder is the exclusive judge of the weight to give the evidence).

The Unusual Interlineations in the Will

The interlineations cast suspicion on the 2005 document.

Deborah’s San Antonio lawyer concedes that the 2005 purported will “is out of the ordinary, having been typed by an octogenarian with eyesight problems and enlarged at a copy shop so that he could read it.” Her San Antonio probate attorney also admits that this document contains “handwritten unintelligible or interlineations,” which “do not comport with the provisions of Section 63 of the Texas Probate Code.” Nevertheless, this is the document she relies on to try to set aside the 2003 will, which was indisputably executed with all the requisite formalities, free from any of the contradictions that plague the purported 2005 will.

There were many contradictions here for the factfinder to resolve, but the most striking contradiction appears in the comparison between Deborah’s San Antonio estate lawyer’s current claim that the 2005 document should be probated as a valid will versus her previous request that the trial court make the following conclusion of law: “The Court concludes that the interlineations in the July 7, 2005 competing will, prevents it from being probated.”

Having affirmatively asked the trial court to conclude that these interlineations prevent the 2005 document from being probated, Deborah is estopped from complaining that the trial court did what she requested. (“Deborah Bedell prays this Court accept the above proposed findings of fact and conclusions of law.”); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (“[A] party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as ‘the invited error’ doctrine.”); Sherman Acquisition, L.P. v. Raymond, No. 04-05-00246-CV, 2006 WL 1004680, at *1 (Tex. App.—San Antonio Apr. 19, 2006, no pet.) (mem. op) (holding that “the doctrine of estoppel or ‘invited error’ precludes a litigant from complaining on appeal that a trial court took a specific action that the complaining party requested.”).

Even if Deborah’s Texas fiduciary litigation attorney had not urged the trial court to conclude that the 2005 document was invalid as a result of these interlineations, case law suggests that these interlineations may nevertheless have invalidated this purported will because they were made on a non-holographic document. See Hancock v. Krause, 757 S.W.2d 117, 121 (Tex. App.—Houston [1st Dist.] 1988, no writ) (“Unlike an attested will, alterations and interlineations in a holographic will do not invalidate the instrument.”) (citing Stanley v. Henderson, 139 Tex. 160, 162 S.W.2d 95 (1942)).

At an alternative minimum, these interlineations raise suspicions during a will contest concerning the 2005 document because it is not clear whether they were made before or after Wade signed the purported will that Deborah’s awyer submitted for probate. Flores held that “[a]lterations or interlineations made on a will before it is signed and witnessed are valid.” 76 S.W.3d at 631. But Wade’s signature appears twice on the 2005 document, and there is no way to tell for certain what was in the document each time he signed it. According to Deborah’s lawyer, Brown testified that “all three of the witnesses were present and witnessed the will in [Wade’s] presence.” But which document did they witness: the one with interlineations or the one without?

Considering these facts, the 2005 purported will was not, as Deborah asserts, “unattended by circumstances which cast suspicion upon it.” It was attended by all manner of suspicious circumstances, which accordingly prevented her from proving to the satisfaction of the court that this document was entitled to be probated.

“[I]t’s just a huge mess,” said the trial judge. “We’re trying to clean it up now.”

There was a lot to try to clean up: conflicting witness testimony, interlineations, and an undated doubly-signed document the size of a newspaper.

“Well, anyway,” the judge finally concluded, “you can only do so much with this.”
But not enough.

Will Contest Case Study: Bedell

This concludes our Bedell Case Study and exemplifies how to probate a will in San Antonio.
Thank you for viewing the case study and if you are in a need of a fiduciary lawyer to contest a will, contact one of our estate lawyers below.

 

James Carter | Will Contest Lawyer San Antonio

James W. Carter

Author
James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.

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