In the Estates of Edmundo J. Gomez and Rose T. Gomez, Deceased--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION

No. 04-05-00300-CV

IN THE ESTATES OF EDMUNDO J. GOMEZ AND ROSE T. GOMEZ, Deceased,

From the Probate Court No. 1, Bexar County, Texas

Trial Court Nos. 2002-PC-2201 & 2002-PC-2207

Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 23, 2005

AFFIRMED

This appeal arises out of a will contest. Specifically, Robert Gomez appeals from the trial court s judgment which (1) denied his application to probate the wills of his parents, Edmundo and Rose Gomez, dated August 23, 2000, (2) set aside a warranty deed executed by them in favor of Robert Gomez, (3) set aside an Edward Jones investment account opened by Rose Gomez in April 2001, and (4) admitted to probate the wills executed by Edmundo and Rose Gomez on November 13, 1991. // On appeal, Robert Gomez challenges the legal and factual sufficiency of the evidence to support the jury s findings that Edmundo and Rose Gomez lacked testamentary capacity to execute the 2000 wills, lacked mental capacity to execute the deed and to open the Edward Jones account, and that such actions were the result of undue influence by Robert Gomez. He also appeals the award of attorney s fees to the appellees, Jeff and Greg Richards. We conclude there is legally and factually sufficient evidence to support the trial court s judgment based on lack of testamentary and mental capacity; therefore, we need not address the issue of undue influence. In addition, we uphold the award of attorney s fees to appellees.Factual and Procedural Background

Edmundo and Rose Gomez were married for over 60 years, and had two children, a daughter Henrietta and a son Robert. Edmundo worked as a machinist at Kelly Air Force Base for 33 years, while Rose was a homemaker. Henrietta married Bernie Richards, and they had two sons, Jeff and Greg. Henrietta and her family lived close to Edmundo and Rose, and saw them often. In October 1991, Henrietta passed away from cancer. Shortly after Henrietta s death, her husband Bernie arranged an appointment with a lawyer who was a family friend, Edward Day. He prepared a will for Bernie as well as for Edmundo and Rose. The wills executed by Edmundo and Rose on November 13, 1991 provided that the entire estate of each would pass to the other spouse if living, but if the spouse had predeceased them, then half of the decedent s estate would pass to Robert and half would pass to Henrietta s children, Jeff and Greg Richards. At the same time, Edmundo and Rose executed reciprocal powers of attorney appointing each other as attorney in fact, and their son Robert as the successor if one spouse had passed away or was unable to serve. During the next few years, Edmundo and Rose continued to live in their home and manage their own affairs.

In 1995, Edmundo, who had suffered from diabetes for many years and had already lost one leg due to complications, had his second leg amputated. // From that time forward, Edmundo was in a wheelchair and needed constant care and assistance from Rose. There was testimony that Edmundo became depressed after he lost his mobility; however, he continued to handle the checking account and financial affairs. In 1998, Edmundo became confused about their checking account balance, believing that they had only $7,000 in their account, when they actually had over $70,000. // Edmundo called his son-in-law Bernie to help him reconcile the account; Bernie notified Robert of the problem, and Robert exercised the powers of attorney. From 1998 on, Robert wrote all of his parents checks and managed all of their financial affairs.

In October 1999, Rose fell at home and broke her hip. She was admitted to the hospital and Edmundo was placed in Grand Court nursing home. After a few weeks, Rose joined Edmundo at Grand Court for rehabilitation; she began using a walker but only regained about half of her prior physical ability. In February 2000, Rose and Edmundo returned home and tried to care for themselves with limited help. There was testimony that Rose was in a lot of pain and could not take care of Edmundo or maintain the house as she had before.

In June 2000, a driver from the Meals on Wheels program run by the Helotes Senior Citizen Center called Bernie and told him that Edmundo and Rose were living in deplorable conditions. Bernie notified Robert, who placed Edmundo and Rose back at the Grand Court nursing home the next day. Edmundo was admitted to the hospital shortly thereafter with pneumonia, but returned to Grand Court a short time later; he was again admitted to the hospital in September 2000. In August 2000, Robert took Edmundo and Rose to an appointment with an Edward Jones investment advisor, Clay Leveritt, to whom Robert had been referred by a friend. Leveritt interviewed Edmundo and Rose about their financial matters, including their estate plans. He referred them to an attorney, Warren McKenney, for advice concerning estate planning. On August 23, 2000, Robert took Edmundo and Rose back to Leveritt s office at Edward Jones where they executed new wills drafted by McKenney that provided that the estate of each would pass to the other spouse if living, but if the spouse had predeceased them, their entire estate would pass to Robert, except for specific bequests of $1,000 each to Henrietta s children, Jeff and Greg Richards, and to Jeff s ex-wife Lisa and Robert s daughter Virna. // At the same time, Edmundo and Rose executed a warranty deed transferring their home, which they owned free and clear, to Robert with reservation of a life estate for their benefit. The deed was never filed.

Edmundo and Rose continued to reside at Grand Court nursing home. Edmundo passed away on March 4, 2001 at 89 years of age. In April 2001, Robert took Rose back to Edward Jones where she opened a joint investment account with right of survivorship between her and Robert; the account was funded with approximately $100,000 she had withdrawn from the Compass Bank annuity. The Edward Jones account, managed by Clay Leveritt, was divided into a series of laddered certificates of deposit with maturity dates five, ten, and fifteen years in the future; the account was later diversified with investments in bonds and preferred stock. After Grand Court went bankrupt, Rose was moved to Regent Care nursing home where she resided until she passed away on May 31, 2002 at 90 years of age.

Shortly after Rose s funeral, Greg contacted Robert to inquire about the status of his grandparents accounts. Robert told Greg that they did not have any money left, and in fact had a negative balance in their bank account; he did not mention the Edward Jones investment account. Greg and his brother Jeff contacted an attorney because they were suspicious. The Richards were advised to file an application to probate the 1991 wills, which they did; they had no knowledge of the existence of the 2000 wills. Robert Gomez filed a competing application to probate the 2000 wills. In April 2004, a jury trial was held on the competing applications for probate and the Richards claims that Edmundo and Rose lacked capacity and were subjected to undue influence in executing the 2000 wills and deed, and in opening the Edward Jones account. The trial court entered judgment on the jury s findings in the Richards favor, and denied the application to probate the 2000 wills, set aside the deed, set aside the Edward Jones account and admitted the 1991 wills to probate. The judgment also awarded the Richards $24,000 in attorney s fees, plus $10,000 for conditional attorney s fees on appeal. Robert Gomez brings this appeal.

Sufficiency of the Evidence

We begin by evaluating the legal and factual sufficiency of the evidence to support the jury s findings that Edmundo and Rose Gomez lacked testamentary capacity to make the 2000 wills, lacked mental capacity to execute the deed, and that Rose lacked mental capacity to open the Edward Jones account. We need not address whether Edmundo had testamentary capacity to execute his 2000 will because even if he did, and the 2000 will was admitted to probate, his entire estate would still have passed to Rose when he predeceased her, as it did under his 1991 will. Therefore, the relevant issue is whether Rose had testamentary capacity to execute her 2000 will.

Standards of Review.

As the proponent of the 2000 will, Robert Gomez had the burden to prove that Rose had testamentary capacity on August 23, 2000 when she executed the new will. Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983) (fact that will contains self-proving affidavit does not relieve proponent of burden to establish testamentary capacity of testator); Lowery v. Saunders, 666 S.W.2d 226, 232 (Tex. App. San Antonio 1984, writ ref d n.r.e.). When a party attacks the legal sufficiency of an adverse finding on an issue for which he had the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Croucher, 660 S.W.2d at 58; Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Under the requisite two-prong analysis, the reviewing court must first examine the record for evidence and inferences that tend to support the finding, while disregarding all evidence and inferences to the contrary. Dow Chemical, 46 S.W.3d at 241. There must be a logical connection, direct or inferential, between the evidence offered and the fact to be proved. Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex. 1994). If there is no evidence to support the finding, then the entire record must be examined to determine if the contrary proposition is established as a matter of law. Dow Chemical, 46 S.W.3d at 241. The reviewing court must assume the jury credited any testimony favorable to its verdict, and disbelieved any contrary testimony, if a reasonable person could do so. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Croucher, 660 S.W.2d at 58; Dow Chemical, 46 S.W.3d at 242. The reviewing court considers and weighs all of the evidence to determine whether the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chemical, 46 S.W.3d at 242; Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003). It is exclusively within the jury s province to resolve conflicts in the evidence and to determine the credibility of the witnesses and the weight to be afforded their testimony. Golden Eagle, 116 S.W.3d at 761.

Testamentary Capacity to Make the August 23, 2000 Will.

An applicant must prove to the satisfaction of the court that the testatrix was of sound mind to obtain probate of a will. Tex. Prob. Code Ann. 88(b) (Vernon 2003); see Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). Being of sound mind means having testamentary capacity. Garcia v. Galindo, 189 S.W.2d 12, 12 (Tex. Civ. App. San Antonio 1945, writ ref d w.o.m.), overruled on other grounds, 285 S.W.2d 179 (Tex. 1955); see also Bracewell v. Bracewell, 20 S.W.3d 14, 19 (Tex. App. Houston [14th Dist.] 2000, no pet.). Testamentary capacity is defined to mean sufficient mental ability, at the time of the execution of the will, to understand the business in which the testatrix is engaged, the effect of her act in making the will, and the general nature and extent of her property. Lowery, 666 S.W.2d at 232 (citing Prather v. McClelland, 76 Tex. 574, 13 S.W. 543, 546-47 (1890)). In addition, the testatrix must also know her next of kin and the natural objects of her bounty, and must have sufficient memory to collect in her mind the elements of the business to be transacted and to hold them long enough to at least perceive their obvious relation to each other, and to be able to form a reasonable judgment as to them. Id. (quoting Prather, 13 S.W. at 546-47).

The relevant inquiry is the condition of the testator s mind on the date the will was executed. Lee, 424 S.W.2d at 611; Lowery, 666 S.W.2d at 232. While the proponent of the will has the burden of proof on the issue of capacity, a will contestant need only produce evidence sufficient to raise a jury issue as to whether testamentary capacity was lacking at the time the will was made. Rich v. Rich, 615 S.W.2d 795, 796-97 (Tex. Civ. App. Houston [1st Dist.] 1980, no writ). Absent direct evidence indicating the testator lacked capacity on the date of execution, the testator s mental condition on that date may be determined from lay opinion testimony based on witnesses observations of the testator s conduct prior or subsequent to the execution of the will. Lee, 424 S.W.2d at 611; see also Croucher, 660 S.W.2d at 57. Evidence of incompetency at other times is probative of incompetency on the date of the will s execution if some evidence demonstrates that the condition persists and has some probability of being the same condition which existed on the date the will was made. Croucher, 660 S.W.2d at 57 (citing Lee, 424 S.W.2d at 611).

Nature and Extent of Property. With respect to the requirement that Rose know the general nature and extent of her property at the time of the new will s execution, the record contains evidence from several witnesses that before and after August 23, 2000, Rose believed that she and Edmundo had no money, despite having more than $150,000 in their estate. // During the February to May 2000 period, when Rose and Edmundo were living at home after she had broken her hip, Greg and Jeff Richards both testified that Rose stated Robert had told them they did not have any money and that Medicaid would not pay for them to return to the nursing home. Greg also testified that on a visit home in August 2000, Rose sheepishly told him she had no money. Jeff testified that shortly after Robert took over their checking account in 1998, Edmundo and Rose firmly believed they did not have any money. Jeff s wife, Lisa, testified that even before October 1999 when Edmundo and Rose first entered the nursing home, and consistently thereafter, Rose was saying she had no money to pay for their Saturday outings for manicures and lunch; previously, Lisa and Rose had taken turns paying. Lisa also stated that Rose wore tattered clothes at Grand Court that were not her own clothes from home; Lisa said that Robert told her he bought the clothes at Goodwill. After Edmundo s funeral in March 2001, Greg drove Rose around to look at other nursing home facilities, but Rose told him that, despite her dissatisfaction with the conditions at Grand Court, she could not afford to move to a higher quality nursing home because she did not have sufficient funds. // Jeff similarly testified that during the first half of the year 2000, Rose believed she and Edmundo could not afford to return to the nursing home.

After Robert took over the check-writing and management of their accounts in 1998, he would give Rose $200 cash when she needed money. Edmundo and Rose had no independent access to their financial accounts after 1998. Both Greg and Jeff testified to their opinion that beginning in 1998 and continuing thereafter, Robert gradually misled Edmundo and Rose to believe they did not have any money. After Edmundo and Rose returned to the nursing home in June 2000, Robert changed the mailing address for all of the account statements to his home address. There was no evidence that Edmundo or Rose saw any of their account statements, or were otherwise aware of the amount of money in their accounts, after they entered the nursing home.

Next of Kin. With respect to understanding her next of kin and the persons dependent on her bounty during the period around August 2000, there was evidence that Rose remembered her family and asked about them, but had impaired short-term memory and could not remember new information. Rose became confused about the details of her family members lives. For example, Lisa testified that when Rose was in the nursing home the second time, she forgot that Lisa had told her she and Jeff were separated. Greg testified that after Rose and Edmundo re-entered Grand Court in June 2000, she questioned him about whether he lived in San Antonio (when he had long since worked and lived in California), whether he had a job, and where he had attended school; these were all matters Rose used to know. Lisa and her father-in-law Bernie also testified that during this period Rose began speaking to them in Spanish, forgetting that they did not understand Spanish.

As to Rose s intent for the distribution of their estate, there was evidence from several sources that she and Edmundo consistently expressed their intent that their grandsons would share equally with Robert in their estate. Evidence was presented that from 1991 until as late as 1999, Rose and Edmundo stated their intent that Jeff and Greg would receive Henrietta s half and Robert would receive the other half of their assets. Bernie testified that when they made the will in 1991, Rose and Edmundo said they wanted Henrietta s share to go to her two sons. Lina Alonso, a bank manager at Compass Bank, testified that Rose said as late as 1997, that their assets would be divided between Jeff and Greg and their son Robert pursuant to their will. Lisa testified that some time prior to October 1999, while they were still living at home, Edmundo expressed their intent that Jeff and Greg would get Henrietta s half and Robert would get the other half, and Rose agreed. Jeff testified that Edmundo told him that he and Greg would share in their estate both before and after he went into the nursing home. Finally, Greg testified that during the late 1990's, Edmundo said that he and Jeff will get your share and Robert will get his share under their will, and Rose agreed. Greg further stated that during 2000 when they were at Grand Court, Edmundo told him they did not have much money, but he would get something when they died.

The only evidence presented with respect to a different intent expressed by Rose or Edmundo in the year 2000, was Robert s testimony that they said they wanted to include their granddaughter-in-law Lisa // and his daughter Virna. There was no evidence presented that either Rose or Edmundo ever expressed any intent to exclude Jeff and Greg from their mother s fifty percent share. There also was no evidence that Rose or Edmundo ever stated their intent to make specific bequests of $1,000 to each grandchild (including Lisa), which the new wills did. Neither Rose nor Edmundo ever expressed any desire to leave Robert their entire estate even to Robert; he testified that he was unaware of the provisions of the new will until after it was executed.

Finally, the evidence showed that Jeff and Greg Richards enjoyed a consistently close relationship with their grandparents from their infancy through their adulthood. While Jeff and Greg were children, they lived close to their grandparents and spent a lot of time at their house. From 1991 forward, Jeff lived in a duplex with his father Bernie just down the street from Edmundo and Rose, and he and Lisa saw them at least once during the week and on Sundays for lunch after church. When they were in the nursing home, Jeff and Lisa visited at least every Sunday. Even though Greg attended college and graduate school out of state, and later worked and resided in California, he called every week and traveled home on all major holidays and family birthdays, both before and after they were in the nursing home. Greg also came home every time Rose or Edmundo entered the hospital. He usually saw his grandparents every day of every visit. // There was no evidence of any negative change in the relationship between Jeff and Greg and their grandparents, and they continued to visit Edmundo and Rose in the nursing home until their respective deaths.

The testimony concerning Robert s relationship with his parents was that they generally enjoyed a good relationship, but that Robert visited his parents infrequently during the 1980's. Greg, Jeff and Bernie Richards testified that it was only after Henrietta repeatedly urged him to visit more regularly in the early 1990's that Robert began bringing in lunch for his parents every Saturday. Robert testified that he visited his parents at least every Saturday while they lived at home. When Rose was in the hospital with her broken hip, Robert testified he took Edmundo to visit her every day. After they entered the nursing home, Robert testified he visited at least five times per week; he did not notice any unsanitary conditions. Jeff, Greg and Lisa testified they rarely ran into Robert at the nursing home.

Making of Will and its Effect & Sufficient Memory. Next, we consider Rose s ability to understand the nature of the business engaged in, i.e., the making of a new will, and its effect, as well as the sufficiency of her memory to perceive all the elements of such business, and their relation to each other, and to make a reasonable judgment. The evidence showed that prior to breaking her hip in October 1999, Rose was fully functional, both physically and mentally. However, Bernie, Greg, Jeff and Lisa Richards testified that while Rose could run the household, she never wrote a check in her life, did not help with or understand the finances, and left all of the financial decisions to Edmundo, and later to Robert. Until 1998, Edmundo always wrote the checks and balanced the accounts, while Rose went into the bank to cash checks and make deposits because of Edmundo s limited mobility. At most, Rose would transfer money into a certificate of deposit at Edmundo s direction. Greg testified that Rose never understood what his Harvard business degree involved. During the late 1990's, Jeff and Lisa had to help Rose fill out the Medicare prescription forms every time because she could not remember the necessary information.

After Rose broke her hip in October 1999, there was evidence that she experienced a steady decline, both physically and mentally. According to Lisa, Rose was physically frail and became depressed, distant and sad; she was less mentally involved and began to speak very low so that it was hard to understand her. During the period between February and June 2000, while Rose was trying to take care of herself and Edmundo at home, Lisa testified Rose was in pain and was mentally overwhelmed; Rose stated that they needed someone to take care of them. Jeff testified that during this period at home, Edmundo and Rose had no free will, and were totally under the control of Robert. Bernie Richards also testified that after October 1999, Rose s mental ability steadily declined.

When Rose executed the new will on August 23, 2000, she was 89 years old. Bernie testified that during the year 2000, Edmundo and Rose were not capable of even knowing or wanting a will to be done. Edmundo was out of it quite a bit, and Rose had no knowledge of financial affairs. Greg testified to his opinion that, based on his visit to her in the nursing home in August 2000, there was no way that Rose had capacity to make a will in August 2000. Jeff also testified that during the year 2000, Edmundo and Rose made absolutely none of their own decisions. Jeff stated his opinion that Rose and Edmundo did not meet the standard for testamentary and mental capacity in the year 2000. Clay Leveritt, the investment advisor, testified that during the August 2000 meeting at Edward Jones, Rose spoke so low he could barely hear her and that he could not understand Edmundo at all; Leveritt was embarrassed by Edmundo s condition. Finally, two months after the will, in October 2000, Robert signed a do not resuscitate order on Rose s behalf as her medical agent under the provision that applied to an incompetent patient who could not make her own decisions.

Edmundo and Rose told no one that they planned to make a new will, or afterward that they had in fact made a new will, including Bernie, Jeff, Greg and Lisa, with whom they had been and continued to be very close. Edward Day expressed his lay opinion that based on his personal knowledge of the family, the 2000 will was an unnatural disposition for Rose to make, and was not consistent with his knowledge of family relations. Bernie testified that Rose would not have cut out her two grandsons from her will if she had understood what she was doing.

Viewing the evidence and inferences in the light most favorable to the jury s finding, we conclude there is legally sufficient evidence, i.e., more than a scintilla, to support the jury s finding that Rose lacked testamentary capacity on August 23, 2000.

We now proceed to evaluate the factual sufficiency of the evidence that Rose lacked testamentary capacity. In support of his application to probate Rose s 2000 will, Robert Gomez presented his own testimony and that of Warren McKenney, the attorney who drafted and notarized the 2000 wills, Clay Leveritt, the investment advisor who witnessed the wills, and Lina Alonso, the manager at Compass Bank. Robert testified that Rose and Edmundo expressed their desire to include Lisa and Virna in their will, and that he did not notice that Rose had any mental problems in 2000. McKenney testified to his opinion that Edmundo and Rose had testamentary capacity, although he admitted that he had no specific memory of Rose or Edmundo, or their conversations, and had no file or copy of the 2000 wills. McKenney testified that he generally evaluated their mental capacity, but did not specifically evaluate them under each element of the test for testamentary capacity. Clay Leveritt testified that he had no concern that Rose and Edmundo did not understand what they were doing by signing the will and deed. Leveritt testified that during their initial meeting, Rose asked him whether the CD s he was recommending were FDIC insured. Lina Alonso at Compass Bank testified that Rose did all of the couple s banking business, writing checks to deposit or cash, and buying CD s. In 1998, Rose understood that she and Edmundo were buying an annuity. In March 2001, when Rose withdrew money from the annuity, Ms. Alonso did not personally see Rose or handle the transaction, but she was sure that Rose had understood the forms or the bank would not have let her withdraw the money.

The testimony of the attorney who prepared the will and an attesting witness to the will that a testatrix was of sound mind when she executed the will constitutes some evidence, but is not conclusive on the issue of testamentary capacity. See Lee, 424 S.W.2d at 610-11 (citing In re Price s Estate, 375 S.W.2d 900 (Tex. 1964)). Here, the jury chose not to believe the testimony of McKenney and Leveritt, and found that Rose lacked capacity to execute a new will in August 2000. When weighed against the evidence of lack of testamentary capacity, discussed supra, we conclude the jury s finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust.

Conclusion. We hold the evidence is both legally and factually sufficient to support the jury s finding that Rose Gomez lacked testamentary capacity when she executed a new will on August 23, 2000. Accordingly, we uphold the jury s finding of lack of testamentary capacity, and affirm the court s denial of the application to probate the 2000 will and admission to probate of Rose s November 13, 1991 will. Having upheld the jury s finding of lack of testamentary capacity, we need not address the sufficiency of the evidence to support its finding of undue influence as the existence of either invalidates the 2000 will. See Lowery, 666 S.W.2d at 229 n. 2.

Mental Capacity to Execute the August 23, 2000 Deed.

We next address the legal and factual sufficiency of the evidence to support the jury s findings that Edmundo and Rose Gomez lacked mental capacity to execute the deed on August 23, 2000. When the issue of mental incapacity is raised, the burden of proof is on the party seeking to set aside the contract, or deed, to show that the person executing the document did not understand the nature and consequences of his act at the time. Mandell & Wright v. Thomas, 441 S.W.2d 841, 845 (Tex.1969) (to have mental capacity to enter into a contract in Texas, a person must have appreciated the effect of what she was doing and understood the nature and consequences of her acts and the business she was transacting ); Gonzalez v. Mendoza, 739 S.W.2d 120, 121-22 (Tex. App. San Antonio 1987, no writ). A lack of mental capacity may be shown by circumstantial evidence which includes: (1) the person s outward conduct, manifesting an inward and causing condition; (2) any pre-existing external circumstances tending to produce a special mental condition; and (3) the prior or subsequent existence of a mental condition from which a person s mental capacity (or incapacity) at the time in question may be inferred. In re Estate of Robinson, 140 S.W.3d 782, 793 (Tex. App. Corpus Christi, 2004, pet. denied). In general, the question of whether a person knows or understands the nature and consequences of his act at the time of the contract is a question of fact for the jury. Id. at 793-94. In determining legal sufficiency, we review only the evidence and inferences that support the jury s finding to decide whether there is more than a scintilla of evidence to support the finding; in determining factual sufficiency, we examine all of the evidence to decide whether the jury s finding is against the great weight and preponderance of the evidence. McLaughlin, Inc. v. Northstar Drilling Technologies, Inc., 138 S.W.3d 24, 27 (Tex. App. San Antonio 2004, no pet.).

With respect to Rose s mental capacity to sign the deed on August 23, 2000, in addition to the evidence detailed supra, Greg testified that in June 2000, Rose had dementia and could not remember new facts or information. In his opinion, there was no way Rose had the mental capacity to know what she was doing and to understand what type of documents she was signing on August 23, 2000. Bernie and Lisa testified that while she was in the nursing home, Rose could make only simple decisions like those involved in getting her nails done or ordering lunch, but did not have sufficient mental capacity to know and understand what was in her best interests. She completely relied on Robert for advice, and full management of all their financial and daily living affairs once she and Edmundo re-entered the nursing home in June 2000. Finally, the evidence that in October 2000, two months after the deed was signed, Robert signed a do not resuscitate order as Rose s agent in the section applicable to a patient who is incompetent or unable to make her wishes known, is compelling evidence that Rose was mentally incompetent on August 23, 2000.

With respect to Edmundo s mental capacity, there was evidence that Edmundo began suffering from dementia as early as 1993 or 1995; he also had suffered from diabetes for many years and was a double amputee. Bernie testified that after his second leg amputation, Edmundo was kind of out of it most of the time, and on a day trip out of the hospital in February 1995, Edmundo asked who lives here? when they arrived at his house. Lisa testified that Edmundo had mental acuity problems even in 1993 when she married Jeff, and the problems consistently worsened over time. As noted, Edmundo was so confused about their account balance in 1998 that Robert took over management of the check book and other accounts. After Edmundo entered Grand Court for the first time in October 1999, Bernie stated that he was confused and indicated that his room was in a different building across the street. Greg testified that during the February to June 2000 period when he and Rose were back at home, Edmundo was out of it and could not carry on a phone conversation.

After Edmundo and Rose re-entered the nursing home in June 2000, Bernie stated that Edmundo started speaking in Spanish and would become irritated when Bernie did not understand him. Shortly after re-entering Grand Court in June, Edmundo was admitted to the hospital with pneumonia; he was admitted to the hospital again in September 2000. On August 23 2000, Edmundo signed the deed and the new will. However, Edmundo s name was misspelled as Edmond on both documents. Both Jeff and Greg testified that Edmundo was very proud of his Mexican heritage and would never have signed a legal document that misstated his proper name if he had been aware of what he was signing. Greg testified that in June 2000, Edmundo had dementia, with terrible short-term memory problems, and extensive physical infirmities. Both Lisa and Jeff testified that Edmundo was not capable of making clear decisions in August 2000, and Bernie stated he was out of it quite a bit in August 2000. In addition, Clay Leveritt testified that he could not understand Edmundo when he met him in August 2000, and was embarrassed by his condition. Finally, the evidence that in October 2000, Robert signed a hospice care form as Edmundo s agent, with the notation patient confusion, is evidence that Edmundo s condition persisted.

Robert Gomez argues in his brief that the lack of medical records and expert testimony by any treating doctors or nurses renders the evidence of mental and testamentary incapacity insufficient as to both Rose and Edmundo. In a will contest, however, it is settled that upon a proper predicate or foundation, all witnesses, whether attesting witnesses, ordinary lay witnesses, or expert witnesses, may express their opinion as to the mental condition of the testator. Storey v. Hayes, 448 S.W.2d 179, 181-82 (Tex. Civ. App. San Antonio 1969, writ dism d) (citing Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621 (1895)); see also Croucher, 660 S.W.2d at 57.

We conclude the evidence is legally and factually sufficient to support the jury s findings that Edmundo and Rose lacked mental capacity to execute the deed on August 23, 2000. See West v. Watkins, 594 S.W.2d 800, 804-05 (Tex. Civ. App. San Antonio 1980, writ ref d n.r.e.) (deed cancelled because elderly grantor lacked mental capacity to understand nature and effect of act on date of execution); see also Voigt v. Underwood, 616 S.W.2d 266, 269 (Tex. Civ. App. San Antonio 1981, writ ref d n.r.e.) (previous mental condition or disorder is usually a continuing condition and is thus probative of mental capacity to execute deed, even if remote in time).

Mental Capacity to Open the Edward Jones Account in April 2001.

Finally, we evaluate the legal and factual sufficiency of the evidence to support the jury s finding that Rose did not understand the nature and consequences of her act in opening, or funding, the Edward Jones account in April 2001. See Thomas, 441 S.W.2d at 845; Gonzales, 739 S.W.2d at 121-22. Lisa testified that after Edmundo died in March 2001 and continuing thereafter, Rose s mental capacity was a 2 on a scale of 1 to 10; physically, she was a 1. Rose had bad short term memory, started speaking Spanish even though her family could not understand her, stopped eating, stayed in her wheelchair and slept a lot, and developed odd mannerisms similar to those exhibited by Edmundo before he died. In the summer of 2001, Lisa stated Rose could make only simple decisions and was exhibiting a steady mental decline. Greg testified that Rose was very depressed, quiet and withdrawn after Edmundo passed away, and was in no condition to open a new investment account. Jeff testified that in March 2001, Rose was very depressed, stayed in her wheelchair, and never ate whole food again, instead surviving on liquid supplements the nurses tricked her into drinking. Jeff stated his opinion that Rose did not understand what she was doing, and that she would never have moved all of her money to be managed by a stranger for a fee when she could just have left the money in CD s at Compass Bank where they had been customers their whole life. Finally, Lina Alonso testified that she did not personally handle the transaction when Rose withdrew the annuity funds, but believed that she would have had to understand the forms and transaction or the bank would not have completed the transaction.

In his brief, Robert Gomez stresses the lack of evidence of the specific date that the Edward Jones account was opened. However, the record as a whole clearly reflects that the account was opened sometime during the period between the first meeting with Clay Leveritt in August 2000 and April 2001 when it was funded with approximately $100,000. We hold the record contains legally and factually sufficient evidence to support the jury s finding that Rose lacked the mental capacity to open and fund the Edward Jones account during that period of time. See Airline Motor Coaches v. Parks, 190 S.W.2d 142, 145 (Tex. Civ. App. Beaumont 1945, no writ) (affirming finding of lack of mental capacity to sign release where widow signed document at funeral home, was suffering from shock and grief, and had little education or mental attainments ).

Attorney s Fees

In his last four issues, Robert Gomez challenges the award of $24,000 in attorney s fees to Jeff and Greg Richards, and the sufficiency of the evidence to support the jury s finding that he did not defend or prosecute this proceeding in good faith and was thus not entitled to recover his attorney s fees. With respect to the award of attorney s fees, Gomez argues the Richards were only entitled to recover their attorney s fees for the will contest under 243 of the Texas Probate Code, and that the fees attributable to setting aside the deed and Edward Jones account should have been segregated and disallowed. See Tex. Probate Code Ann. 243 (Vernon 2003) (providing that a person designated as executor or beneficiary in a will may recover reasonable attorney s fees out of the estate if he defends or prosecutes any proceeding to probate a will in good faith and with just cause, regardless of success). The Richards reply that their claims to set aside the deed and account were based on the same facts showing incapacity and undue influence, and are so intertwined with the will contest that they can not be segregated; therefore, they are entitled to the full amount of unsegregated fees. We agree.

We review an award of attorney s fees under an abuse of discretion standard, subject to the requirements that the fees awarded be reasonable and necessary, as well as equitable and just. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). To show the reasonableness and necessity of attorney s fees, the party seeking to recover its fees is required to show that the fees were incurred on a claim which allows recovery of such fees. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). Generally, when a party is entitled to recover attorney s fees for certain claims, but not other claims, the party must segregate the recoverable attorney s fees from the unrecoverable fees. Id. at 10-11. An exception to the duty to segregate arises when claims for which fees are recoverable and unrecoverable are inextricably intertwined. Id. at 11. Claims are considered to be so intertwined that they can not be segregated when the claims arise out of the same transaction and are so interrelated that they involve essentially the same facts. Id. Therefore, if the Richards causes of action to set aside the deed and account are dependent on the same set of facts or circumstances as the will contest, and are thus intertwined to the point of being inseparable, they may properly recover the entire amount of attorney s fees attributable to all their claims. Id. at 11-12 (quoting Gill Sav. Ass n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex. App. Houston [14th Dist.] 1989), modified, 797 S.W.2d 31 (Tex. 1990)).

Here, our review of the record leads us to conclude that the Richards claims to set aside the deed and account arose out of the same transaction and involved proof of essentially the same set of facts showing the incapacity and undue influence of Edmundo and Rose on August 23, 2000, and thereafter until the account was funded by Rose in April 2001. The same evidence that was probative of Rose s mental incapacity and undue influence in executing the will and deed was similarly probative of her incapacity and undue influence to open or fund the account several months later. As detailed above, there was sufficient evidence that Rose s impaired mental condition persisted, and did not improve, from August 2000 until April 2001; in fact, there was evidence that her mental condition worsened after Edmundo s death in March 2001. Moreover, the execution of the will and deed, and the opening of the Edward Jones account all arose out of the same bundle of estate planning transactions initiated by Clay Leveritt and Warren McKenney in August 2000. Finally, the Richards attorney testified that the fees attributable to setting aside the account could not be segregated from the will contest because all of the claims are so melded together. When pressed on cross-examination, she stated that if she had to divide the cases, her estimate of the fees would be to split [them] in half. We hold there was no duty to segregate the attorney s fees and the trial court did not err in awarding the full $24,000 in attorney s fees to the Richards. Sterling, 822 S.W.2d at 11-12; see also Everest Exploration, Inc. v. URI, Inc., 131 S.W.3d 138, 145 (Tex. App. San Antonio 2004, no pet.) (no duty to segregate attorney s fees where legal work on the claims was interdependent, interrelated and necessary); Hartmann v. Solbrig, 12 S.W.3d 587, 594 (Tex. App. San Antonio 2000, pet. denied) (executrix was not required to segregate attorney s fees among settling and non-settling defendants where litigation facts were inextricably intertwined in declaratory judgment involving will contest, removal action and action based on prior settlement agreement).

As to Gomez s challenge to the jury s finding that he did not defend or prosecute the probate proceeding in good faith, we hold there is legally and factually sufficient evidence to support the finding. As detailed supra, the record contains sufficient evidence to support a reasonable inference that Robert Gomez was aware of his parents lack of capacity to execute the 2000 wills and deed, and Rose s lack of capacity to fund the Edward Jones account. Particularly in view of Robert s execution of the hospice forms on behalf of Edmundo on October 23, 2000, with the notation patient confusion, and his execution of a do not resuscitate order on behalf of Rose as her medical agent, without her signature, on October 25, 2000, the jury could have reasonably inferred that Robert was aware of his parents lack of capacity at the relevant times and thus did not offer the 2000 wills for probate in good faith. Gomez s issues related to the award of attorney s fees are overruled.

Conclusion

Based on a thorough review of the record, we hold there is legally and factually sufficient evidence to support the jury s findings that Rose Gomez lacked testamentary capacity to make the 2000 will, Rose and Edmundo lacked the mental capacity to execute the deed, and Rose lacked the mental capacity to open and fund the Edward Jones account. Given our holding, we need not address the sufficiency of the evidence on the issue of undue influence. As to the award of attorney s fees, we affirm the award because the claims of lack of capacity and undue influence with respect to the wills, deed, and account are so intertwined that segregation is not required. Accordingly, we affirm the trial court s judgment.

Phylis J. Speedlin, Justice