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Will Contest Case Study: Bedell Part 4

San Antonio Attorney Arguments Against Will Probate
Case Study: Bedell Part 4

This is part four of our Bedell Case Study. In Part 3 we wrapped up the argument overviews and discussed the court’s ruling in favor of probate and will lawyer Jimmy Carter. Today we will discuss the first three arguments in depth.

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

The 2005 document does not qualify as evidence of a subsequent will to revoke the 2003 will.

The Purported Will Did Not Qualify as Evidence

The 2005 purported will was neither offered nor admitted as evidence during the fiduciary litigation.

In her first point, Deborah criticizes the trial court’s Finding of Fact No. 4 that “[t]here was no evidence of revocation of the 2003 Will raised by the Contestant.” But as Deborah concedes, to prove her assertion that Wade had revoked the 2003 will she would have to show that he did so “by a subsequent written will” or by “destroying or canceling” the 2003 will. Because there is no dispute that Wade did not destroy or cancel his 2003 will, Deborah had the burden to prove that the 2005 document constituted a valid will. But the purported will that she sponsored was neither offered nor admitted as evidence during the will contest trial. Therefore, it did not provide sufficient proof in support of her assertions.

Regardless, even if this document had been admitted, although that might have provided “some evidence” in the technical sense, as a practical matter, it presented “no evidence” of the revocation of the 2003 will because, as the factfinder determined, the 2005 document was not executed with all of the statutory formalities required for it to qualify as a valid will. The 2005 purported Will also did not state that it revoked prior wills.

The Purported Will Was Not Properly Attested

Deborah did not prove that the 2005 document was properly attested to by at least two credible witnesses.

Even assuming hypothetically that the 2005 document had been admitted as evidence, one of the required formalities of a will, with which the 2005 document did not comply, is that it must be attested to by at least two credible witnesses. Here, only one person—Deborah’s brother—testified that he had witnessed the 2005 purported will. And even that singular testimony contained contradictions.

1. Cervantes was not a witness to the purported 2005 will

Of the three people who Deborah claimed had witnessed Wade’s will, the only one her San Antonio probate attorney called to testify was her brother, Gus Brown, whom she herself had asked to witness the purported 2005 will. The other alleged witness, Joe Cervantes, testified that he had neither witnessed nor signed the 2005 document and was not present when Wade signed it. The trial court, as the exclusive fact finder, was entitled to believe Cervantes and disbelieve Brown. It is the trier of fact who judges the credibility of the witnesses and the weight to be given their testimony.

Deborah’s San Antonio probate attorney attacked Cervantes’ credibility on the basis that he had supposedly contradicted himself by testifying that he had never met Brown, while later stating that he had been in the same house with him. But that is not a contradiction because seeing someone and meeting them are not the same. Regardless, even assuming hypothetically that this could qualify as a contradiction, the trial court, as the exclusive factfinder, was still entitled to believe all or any part of any witness’ testimony, notwithstanding any conflicts.

In similar fashion, the trial court’s exclusive authority to weigh testimony and resolve conflicts includes the right to disbelieve Deborah’s insinuation that Cervantes was biased against her because of an argument she claimed to have had with him and to believe Cervantes, who said that no dispute had occurred.

“[S]he called me and said kind of stay away, [Wade]’s old, doesn’t know what he’s doing [and] I don’t want him selling you land that cheap,” Cervantes recalled. “I didn’t even consider it an argument. I just agreed with her because I didn’t want no trouble.”
In addition to the conflict between Cervantes’ testimony and Deborah’s, her own brother, Gus Brown, contradicted her claim that she had not been present when Wade signed the 2005 purported will.

“[T]here’s just a lot of questions in this case about credibility of the witnesses,” Robyn’s San Antonio probate attorney Jimmy Carter pointed out, “concerning particularly Mr. Brown.”

Given the multiple conflicts with Brown’s testimony, as well as his inherent brotherly bias in favor of Deborah, the trial court was entitled to determine that Cervantes’ testimony was more believable than Brown’s, particularly considering that anyone who had actually signed this peculiar oversized article would remember having done so.

“It’s such an unusual thing,” Robyn’s trust and estate lawyer Jimmy Carter told the trial court, “I don’t see how anybody could forget that they had signed it. And so, for that reason, I think that Mr. Cervantes is particularly credible in his testimony that he didn’t sign it.” The will contest trial court judge agreed with San Antonio lawyer Jimmy Carter.

2. Lazarony served as a notary, not as a witness.

The only other person whom Deborah tried to pass off as a witness to the 2005 purported will was Elizabeth Lazarony, a notary. But Deborah did not call the notary to testify in support of the assertion that Lazarony signed as a witness rather than as a notary.
Deborah’s attorney commented to the trial court at the beginning of the case that the notary’s employer had said she was in ill health, thereby insinuating that this was the reason the notary would not appear to testify. But there is no evidence that the notary was in such ill health that she could not have appeared to testify if Deborah had subpoenaed her, which Deborah did not do, or that her attorney could not have deposed the notary orally or by written questions. Nor did Deborah request a continuance to a time when the notary could appear in court to testify.

At trial, in support of her assertion that a notary can be a witness to a will, Deborah’s San Antonio fiduciary lawyer cited Saathoff v. Saathoff, 101 S.W.2d 910 (Tex. Civ. App.—San Antonio 1937, writ ref’d) at 911. That may explain why Deborah’s San Antonio trust & estate lawyer did not bother to cite this case in her amended appellant’s brief.

In re Estate of Teal, a case that did cite Saathoff, accepted a notary as a witness to a will, but limited that decision to “the facts in this case.” In re Estate of Teal, 135 S.W.3d 87, 91 (Tex. App.—Corpus Christi 2002, no pet.). Those facts included the notary’s testifying that she had spoken to the testator and had determined that he “was of sound mind and body, was aware of the contents of the will and was executing it of his own free will.” Id.; see also Brown v. Traylor, 210 S.W.3d 648, 671-72 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (in which a notary testified that “she was a witness” and that the testator “was of sound mind, knew what he was doing and what he was signing, and knew what his property was and how much he had on the day that he executed the will”).
Unlike the will contest in Teal, the notary here did not testify that in her opinion the testator was “of sound mind and body.” In fact, no one testified that he was of “sound body” at the time—just the opposite: it is undisputed that his eyesight was so bad he could not even see the document he typed. Nor is there any evidence that the notary “question[ed] the testator about his intentions and the contents of the will.” See Teal, 135 S.W.3d at 91.

“Here’s the problem with it,” the trial court pointed out: “We don’t have the notary.”
The problem was Deborah’s and that of her San Antonio trust and estate lawyer, because she had the burden of proof, and, regardless of the reason, the notary did not testify. See Gasaway v. Nesmith, 548 S.W.2d 457, 459 (Tex. Civ. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.) (“After a will has been duly admitted to probate, the burden is upon the contestant of the will to establish its invalidity. Thus, in the [will contest] case at bar, the contestant, rather than the proponents, carried the burden of proof.”).

“When doubt exists concerning the purpose of the witnesses’ signatures, the testimony [in the will contest case] of the attesting witnesses may serve to explain the reason for their signatures.” Mossler v. Johnson, 565 S.W.2d 952, 957 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). That did not happen here, however, because not only was there no testimony that the notary was old enough to be a witness, there was no testimony offered by Deborah’s probate attorney from the notary that she served as a witness at all.

Under these circumstances, the trial court, as the sole fact finder, was entitled to weigh this absence of notarial testimony, as well as the weight of actual testimony, to determine whether the evidence was insufficient to support Deborah’s assertion that the notary served as a witness to the 2005 purported will. See Gardner v. Gardner, 229 S.W.3d 747, 753 (Tex. App.—San Antonio 2007, no pet.) (“The trial court, as fact finder in this case, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.”).

Cervantes’ denial that he witnessed the will, and the lack of any testimony from the notary, left Brown as the only person to claim that he had been a witness to the 2005 purported will. But one witness is not enough to validate a will. Tex. Est. Code § 251.051. Furthermore, as Deborah’s brother, not only was he inherently biased, but his testimony was contradicted—even by Deborah and her San Antonio probate lawyer, who disagreed with his recollection that she had been present when Wade signed the 2005 document. Therefore, the trial court, as the sole arbiter of witness credibility, was not bound to believe everything Brown claimed. See In re T.K.D-H., 439 S.W.3d 473, 480 (Tex. App.—San Antonio 2014, no pet.) (holding that the trial court, “as the fact-finder, was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony”).

Will Contest Case Study: Bedell Part 5

Next week we will continue this Bedell will contest case and go into the argument about Wade’s incapacity to execute a new will.


James Carter | Will Contest Lawyer San Antonio

James W. Carter

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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