In the Matter of the Estate of Rosezellar Willich, Deceased--Appeal from County Court at Law of Henderson County

NO. 12-06-00409-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF THE ESTATE APPEAL FROM THE

OF ROSEZELLAR WILLICH, COUNTY COURT AT LAW

DECEASED HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Robert Lewis Willich appeals an order admitting the will of Rosezellar Willich to probate as a muniment of title. On appeal, Willich presents seven issues. We modify the order and affirm as modified.

Background

On May 21, 1998, Rosezellar Willich executed a self proved will bequeathing her estate to her spouse, Ernest Justin Willich. If her husband did not survive her, Rosezellar bequeathed her estate to John M. Button, III, her grandson. If neither survived her, Rosezellar bequeathed her estate to her heirs as determined by the laws of the State of Texas relating to descent and distribution. There were three subscribing witnesses to decedent s will. According to the record, Rosezellar died on June 30, 2006 and Ernest predeceased her. On September 20, 2006, Button filed a first amended application for probate of Rozellar s will as a muniment of title. In the application, Button listed Rosezellar s heirs as four surviving children and himself. He also listed the three subscribing witnesses, stating that their addresses were unknown. Further, Button asked that the court waive the requirements of section 89C(d) of the Texas Probate Code requiring a sworn affidavit stating the terms of the will that have been fulfilled and the terms that have not been fulfilled. Willich filed a motion to contest the application for probate, contending that the application did not comply with the Texas Probate Code, that Rosezellar lacked testamentary intent, and that the will was not self proved, removed her eldest son as executor, and was the result of undue influence. Because of the contest, the case was transferred to the county court at law of Henderson County, Texas.

On November 16, 2006, the trial court held a hearing on the application. Button testified that he was Rosezellar s grandson, that she died in Kaufman although she was a resident of Henderson County, and that her estate consisted of a house valued at approximately $30,000.00. Button identified Rosezellar s will and signature, and stated that she left everything to him. He also stated that no state or governmental agency or charitable organization was named as a beneficiary in the will, that there were no debts owed by the estate, and that there was no need for administration. Button also asked the trial court to waive the requirements of section 89C(d) of the Texas Probate Code. On cross examination, Button stated that in 1998, Rosezellar was living in Whitney, Texas and that the will was signed at an office in Seven Points, Texas. He did not know the witnesses names.

Willich contended that without affidavits attached to the application required by section 49 of the Texas Probate Code, the application was not valid. He contended further that the application did not list all of Rosezellar s heirs, i.e., Charles Merchant, a predeceased son. However, Willich stated that he was not sure if Merchant s children were entitled to inherit Merchant s twenty percent. According to Willich, Rosezellar declared that the will was four pages, but it contained only three pages. Willich also asserted that Rosezellar was unduly influenced to make her will. He stated that the witnesses to the will must be present because there ain t no affidavit towards the will. Further, Willich noted that the application did not contain the witnesses addresses. He also claimed that someone had to drive his parents to the office in Seven Points, Texas.

At the conclusion of the hearing, the trial court admitted the will to probate as a muniment of title. On November 16, 2006, the trial court signed an order in accordance with its ruling. Willich filed a motion objecting to the order, specifically noting that it declared there was no objection to or contest of the will. Willich appealed pro se. Button did not file a brief.1

Undue Influence and Lack of Testamentary Intent

In his first and fourth issues, Willich argues that the trial court erred in admitting the will to probate because it was the result of undue influence and Rosezellar lacked testamentary intent or capacity. More specifically, he contends that Rosezellar granted Button a power of attorney that gave Button an opportunity to exert undue influence on Rosezellar to execute the will. He also argues that Button s undue influence caused Rosezellar to sign a will that contained only three pages, not four pages as declared in the will itself. Because of the undue influence and the difference between the stated length of the will and the actual will, Willich argues that the will is a forgery. Further, he contends that Rosezellar lacked testamentary intent or capacity because she suffered from Alzheimer s disease, was a borderline diabetic, and took medications for high blood pressure and pain.

Applicable Law

A will may be set aside for undue influence if a contestant proves (1) the existence and exertion of an influence, (2) the effective operation of such an influence that the mind of the testator was subverted or overpowered at the time of the will s execution, and (3) the execution of a will that the testator would not have executed but for that influence. Cotten v. Cotten, 169 S.W.3d 824, 827 (Tex. App. Dallas 2005, pet. denied). The burden of proving undue influence is upon the party contesting its execution. Estate of Davis v. Cook, 9 S.W.3d 288, 293 (Tex. App. San Antonio 1999, no pet.). The exertion of undue influence cannot be inferred from opportunity alone. Cotten, 169 S.W.3d at 827. It is necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the elements of undue influence. Estate of Davis, 9 S.W.3d at 293.

A testator is presumed to know the contents of a testamentary instrument she signed if she (1) is of sound mind, (2) is able to read and write, (3) has the capacity to acquire knowledge of the contents of a document by exercising her faculties, and (4) executes the instrument and has it witnessed as required by statute. Collins v. Smith, 53 S.W.3d 832, 837 (Tex. App. Houston [1st Dist.] 2001, no pet.). A testator has testamentary capacity when she has sufficient mental ability to understand she is making a will, the effect of making a will, and the general nature and extent of her property. Long v. Long, 196 S.W.3d 460, 464 (Tex. App. Dallas 2006, no pet.). She must also know her next of kin and the natural objects of her bounty, and the claims upon them, and have sufficient memory to collect in her mind the elements of the business transacted and hold them long enough to form a reasonable judgment about them. Id. The proponent of the will has the burden of proving testamentary capacity. Id. However, a self proving affidavit attached to a will allows the proponent of a will a manner of proof in which to make out a prima facie case that the testator had testamentary capacity or intent. See Reynolds v. Park, 485 S.W.2d 807, 816 (Tex. Civ. App. Amarillo 1972, writ ref d n.r.e.). Once the proponent of the will produces a self proved will into evidence, the contestant must go forward with evidence to rebut the presumption. See id.

Analysis

At trial, Willich stated that the will was missing one page because it contained only three pages even though Rosezellar declared that she was signing a four page will. He also stated that Rosezellar s previous will appointed Merchant as executor and that, in 1998, somebody got it changed. According to Willich, someone caused his parents to change the will over to [Button] and everything was given to him because [Rosezellar was] easily influenced over the years. He also alleged that Rosezellar was signing anything over to anybody. According to Willich, someone had to drive his parents from their home in Whitney, Texas to Seven Points, Texas where the will was executed. Other than determining where the will was executed, he did not question Button regarding his claims of undue influence. Nor did he introduce any evidence or produce any witnesses regarding the existence or operation of undue influence upon Rosezellar s mind or that she would not have executed the will but for that influence. Because Willich failed to introduce any tangible and satisfactory proof of the existence of each of the elements of undue influence, he failed to prove that Rosezellar was unduly influenced to execute the will. See Estate of Davis, 9 S.W.3d at 293.

Regarding Rosezellar s lack of testamentary intent or capacity, the burden of proof is on Button. In her will, Rosezellar stated that she was of sound mind and in the contemplation of the certainty of death. Button filed Rosezellar s self proved will with the trial court. At that point, the burden shifted to Willich to produce evidence to rebut the presumption that Rosezellar had testamentary capacity or intent. See Reynolds, 485 S.W.2d at 816. At trial, Button did not testify regarding Rosezellar s testamentary intent or capacity, nor was he questioned by his attorney or Willich regarding Rosezellar s state of mind or capacity. Willich stated that Rosezellar was signing anything over to anybody and that she had been easily influenced over the years. He did not argue that Rosezellar had Alzheimer s disease or that she was on several medications. Willich also did not produce any evidence that Rosezellar lacked testamentary intent or capacity. Because Willich failed to introduce any evidence on the issue, he did not rebut the presumption that Rosezellar had testamentary intent or capacity to execute the will. See id. Therefore, we overrule Willich s first and fourth issues.

Section 89 of the Texas Probate Code

In his second issue, Willich contends that the trial court lacked jurisdiction to waive section 89C(d) of the Texas Probate Code. In his application for probate and at trial, Button requested the trial court waive the requirements of section 89C(d) of the Texas Probate Code. Section 89C(d) states that unless waived by the court, after the date a will is admitted to probate as a muniment of title, the applicant for probate of the will shall file with the clerk of the court a sworn affidavit stating specifically the terms of the will that have been fulfilled and the terms of the will that have not been fulfilled. Tex. Probate Code Ann. 89C(d) (Vernon 2003). However, an appellate brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities. Tex. R. App. P. 38.1(h). Willich does not provide any argument or citations to the record to demonstrate why the trial court lacked jurisdiction to waive the requirements of section 89C(d). Willich s argument consisted only of a conclusory statement that the trial court lacked jurisdiction to waive section 89C(d). Because Willich has failed to provide an adequate substantive analysis of this issue, he has presented nothing for our review. See Tex. R. App. P. 38.1(h). Therefore, we overrule Willich s second issue.

Jurisdiction

In his third issue, Willich contends that the trial court lacked jurisdiction over Rosezellar s will because there was a will contest. A county court has the general jurisdiction of a probate court. Tex. Probate Code Ann. 4 (Vernon 2003). However, in contested probate matters, the judge of the constitutional county court shall, on the motion of a party to the proceeding, transfer the proceeding to the county court at law or a statutory court exercising the jurisdiction of a probate court other than a statutory probate court. Tex. Probate Code Ann. 5(c) (Vernon 2003). After Willich filed a motion to contest the application for probate, Button moved the county court to transfer the case to the county court at law. The county court granted Button s motion. According to section 5(c), the county court had no choice but to transfer the case to the county court at law.

Appellant cites In re Estate of Kurtz, 54 S.W.3d 353 (Tex. App. Waco 2001, no pet.), for the proposition that the county court at law was without jurisdiction to hear the will contest. In that case, the county court admitted the contested will to probate as a muniment of title. Id. at 354. After doing so, the contestant filed several motions and the county court transferred the case to the county court at law for hearing purposes only. Id. The court of appeals held that when the order admitting the will to probate as a muniment of title became final, the county court s jurisdiction terminated. Id. at 356. Thus, it had no jurisdiction to entertain the contestant s postjudgment motions, and the county court at law was also without jurisdiction to hear the case. Id. In this case, the county court transferred the case to the county court at law before admitting the will to probate as a muniment of title and in accordance with section 5(c) of the Texas Probate Code. Accordingly, the trial court had jurisdiction of the proceeding. Therefore, we overrule Willich s third issue.

Application for Probate

In his fifth issue, Willich argues that the trial court erred by considering Button s application to probate Rosezellar s will because it failed to conform to the Texas Probate Code. More specifically, he contends that the application failed to give the correct time and place of Rosezellar s death, failed to list the subscribing witnesses addresses, failed to give a description of Rosezellar s property, failed to prove that Rosezellar was of sound mind, and failed to contain the affidavit required by section 49 of the Texas Probate Code.

Applicable Law

An application for probate of a will as a muniment of title shall state (1) the name and domicile of each applicant, (2) the name, age if known, and domicile of the decedent, and the fact, time, and place of death, (3) facts showing that the court has venue, (4) that the decedent owned real or personal property, or both, describing the property generally, and stating its probable value, (5) the date of the will, the name and address of the executor named in the will, if any, and the names and residences of the subscribing witnesses, if any, (6) whether a child or children born or adopted after the making of such will survived the decedent, and the name of each such survivor, if any, (7) that there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate, (8) whether the decedent was ever divorced, and if so, when and from whom, and (9) whether the state, a governmental agency of the state, or a charitable organization is named by the will as a devisee. Tex. Probate Code Ann. 89A(a) (Vernon Supp. 2007). These matters shall be stated and averred in the application to the extent that they are known to the applicant, or can with reasonable diligence be ascertained by the applicant. Id. If any of such matters is not stated or averred in the application, the application shall set forth the reason why such matter is not so stated and averred. Id.

Analysis

Willich contends that the application for probate failed to conform to section 89A of the Texas Probate Code because it contained the incorrect date and place of Rosezellar s death. In the application, Button stated that Rosezellar died on June 30, 2006 in Kaufman, Kaufman County, Texas. However, Willich stated in his motions contesting the will that Rosezellar died on June 29, 2006 in Kaufman, Kaufman County, Texas. No death certificate was filed as an exhibit to any of the applications or motions in the clerk s record, nor was a death certificate entered as an exhibit at trial. Because there is no death certificate in the record, we cannot determine whether the application for probate failed to state the correct date of Rosezellar s death. As such, we must presume that the application was correct.

Willich next argues that the application did not list the subscribing witnesses addresses. In the application, Button listed the three subscribing witnesses to Rosezellar s will and stated that all three of their addresses were unknown. Although the probate code states that the subscribing witnesses residences shall be listed in the application, it also states that these matters should be stated and averred to the extent they are known to the applicant. See Tex. Probate Code Ann. 89A. Because we presume Button stated the witnesses residences to the extent known to him, we cannot conclude that the trial court erred by considering the application even though it did not contain the subscribing witnesses residences.

However, Willich contends that because the witnesses addresses are unknown, there is no way to determine if they actually witnessed Rosezellar s will. If a will is self proved as provided in the Texas Probate Code, no further proof of its execution with the formalities and solemnities and under the circumstances required to make it a valid will shall be necessary. See Tex. Probate Code Ann. 84 (Vernon 2003). Because Rosezellar s will is self proved, Button was not required to prove that the named individuals witnessed her will.

Further, Willich argues that the application did not give a description of Rosezellar s property. The application stated that Rosezellar s estate consisted of real and personal property. Although the probate code requires the property to be described generally, it also provides that these matters should be stated and averred to the extent they are known to the applicant. See Tex. Probate Code Ann. 89A. Because we presume Button stated Rosezellar s real and personal property to the extent known to him, we cannot conclude that the trial court erred by considering the application even though it did not contain a more detailed description of Rosezellar s real and personal property.

Appellant also contends that the application did not prove that Rosezellar was of sound mind. However, proof that Rosezellar was of sound mind need not be included in the application. See Tex. Probate Code Ann. 89A. Finally, Willich argues that the application failed to contain the affidavit required by section 49 of the Texas Probate Code. Section 49 defines who may institute proceedings to declare heirship. See Tex. Probate Code Ann. 49 (Vernon 2003). A proceeding to declare heirship may be instituted only when a person dies intestate or when a will has been probated and any real or personal property has been omitted from the will. See Tex. Probate Code Ann. 48 (Vernon Supp. 2007). Rosezellar did not die intestate, nor does Willich argue that the will omitted any real or personal property. As such, section 49 does not apply.

We overrule Willich s fifth issue.

Removal of Heirs

In his sixth issue, Willich argues that Rosezellar s heirs, particularly her predeceased child s heirs and her adopted children, must have been expressly removed from her will. Because Rosezellar did not do so, he contends, the heirs at law should inherit her estate.

Applicable Law

A person of sound mind has a legal right to dispose of her property as she wishes. Cotten, 169 S.W.3d at 828. In order to disinherit an heir, a testator must effectively dispose of her property to another under the provisions of her will. In re Estate of Self, 591 S.W.2d 338, 340 (Tex. Civ. App. Tyler 1979, no writ). The Texas Supreme Court has stated that

[t]he right of the heir is defeated only by a substitution of some person to take in his place. And not by a declaration, or express intention, that he shall not take. Hence, though the heir is expressly disinherited, as if a man by his will should declare that his heirs or next of kin shall have no part of his estate, and not direct who shall have it, still the heir would take, not under the will, but under the law; for there must be in the will a devisee, to supplant the heir.

 Id. (quoting Philleo v. Holliday, 24 Tex. 38 (1859)). If a testator fails to make an effective disposition of her property to another, the property will pass to her heirs at law under the laws of descent and distribution. Id. (citing Najvar v. Vasek, 564 S.W.2d 202, 207 (Tex. Civ. App. Corpus Christi 1978, no writ)).

Analysis

In her will, Rosezellar bequeathed her estate to her husband. However, if he predeceased her, she bequeathed her estate to Button. If both her husband and Button predeceased her, Rosezellar left her estate to her heirs as determined by the laws of the State of Texas relating to descent and distribution. Rosezellar had the legal right to dispose of her property as she wished. See Cotten, 169 S.W.3d at 828. Because Rosezellar s husband predeceased her, all of her estate passed to Button under the terms of her will. The rights of Rosezellar s heirs at law, including Willich, were defeated because Button survived Rosezellar and he, as the devisee of her entire estate under the will, supplanted them. See In re Estate of Self, 591 S.W.2d at 340. Accordingly, Rosezellar s heirs at law were not entitled to any portion of her estate under the laws of descent and distribution. Therefore, we overrule Willich s sixth issue.

Order Admitting Will to Probate

In his seventh issue, Willich contends that the trial court abused its discretion by signing the order admitting the will to probate because it contained error. More specifically, he argues that the order stated there was no objection to or contest of the will. The order admitting the will to probate as a muniment of title included a finding that no objection to or contest of the probate of said Will has been filed herein. We note that the clerk s record shows Willich filed one motion and several supplemental motions to contest the application for probate. Accordingly, we sustain Appellant s seventh issue.

Conclusion

Because we have sustained Willich s seventh issue, we modify the trial court s order admitting Rosezellar s will to probate by deleting the words no objection to or contest and substituting in their place the words a contest. See Tex. R. App. P. 43.2(b); Mullins v. Mullins, 202 S.W.3d 869, 878 (Tex. App. Dallas 2006, pet. denied) (stating that an appellate court has the authority to modify an incorrect judgment when the necessary information is available). We affirm the trial court s order as modified.

BRIAN HOYLE

Justice

Opinion delivered December 21, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 We have liberally construed Willich s brief in order to give effect to his arguments. See Tex. R. App. P. 38.9. As such, we have determined that he has raised seven issues.