in the Estate of Wynell N. Klutts ( 2019 )

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.
Memorandum Opinion by Chief Justice Sudderth
Concurring and Dissenting Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
I. Introduction
In four issues in this dueling-wills case, Appellants Jan Margaret McKee,
Donna Vick, and Paula Fuqua appeal the trial court’s summary judgment for their
stepbrother, Appellee Michael O. Kornegay. We reverse and remand.
II. Factual and Procedural Background
Fred and Wynell Klutts married in 1959; Michael was Wynell’s son from a prior
marriage, and Jan, Donna, and Paula were Fred’s daughters from a prior marriage.
Fred died in August 2007. Wynell died nine years later.
Between August 2007 and August 2016, Wynell executed four wills—two in
2007, one in 2008, and one in 2010.
In the first two wills, Wynell devised everything equally to the four children and
appointed Michael and Jan as co-executors. In 2007, she also appointed Michael and
Jan as her agents under a medical power of attorney and as attorneys in fact in a
durable general power of attorney instrument that required them to act jointly or to
agree in writing to exercise such authority separately. And Wynell executed a
“Declaration of Guardian” that expressly disqualified Donna and Paula from serving
as her guardian in the event that she someday needed one. From December 2007 to
April 2008, Wynell transferred assets worth over $6.4 million—approximately $1.6
million each—to Jan, Donna, Paula, and Michael.
2
Wynell executed a third will on July 24, 2008, in which she left everything to
Michael and Jan in equal shares and stated that she had “deliberately made no
provision herein for the benefit of [her] stepdaughters[] Donna . . . and Paula . . ., for
good and sufficient reasons which [she did] not care to enumerate herein.”1 She
appointed Michael as her executor, with Jan to be her executor only if Michael
predeceased Wynell, resigned, or became legally incompetent to act as executor.
Almost two years later, in April 2010, Wynell executed a statutory durable
power of attorney appointing Michael as her sole attorney in fact. Six months after
that, in October 2010, she executed another will, in which she devised 78% of a
limited partnership to Michael, the remaining 22% to Jan, and everything else to
Michael. In the 2010 will, she named Michael as her executor and Donald L. Barley,
who prepared both the 2008 and 2010 wills, as the successor executor.
After Wynell died in August 2016, Jan, Donna, and Paula sought to admit the
2007 will to probate. Michael challenged it, arguing that Wynell’s 2008 and 2010 wills
had revoked the 2007 will, and he sought to admit Wynell’s 2010 will to probate.2 In
1
When Wynell’s previous attorney noted his concern about Wynell’s expressed
desire to disinherit Paula and Donna, Michael engaged a different attorney to draft the
2008 will.
2
Prior to this case’s submission, we asked the parties to explain how this court
had jurisdiction when the trial court’s summary judgment order did not appear to be
final. Both parties responded that the trial court’s summary judgment became final
and appealable after Michael nonsuited his application to probate Wynell’s 2010 will
as a muniment of title. Michael stated in his contest to Jan’s appointment and his
application to probate the will as a muniment of title that Wynell had property—cash,
3
support of Jan as executor of Wynell’s estate, Donna and Paula raised two grounds:
undue influence by Michael and Wynell’s lack of testamentary capacity with regard to
the 2008 and 2010 wills.3
Michael filed a traditional and no-evidence motion for partial summary
judgment. In the traditional portion of his motion, he argued that the 2007 will was
revoked by the 2008 and 2010 wills, both of which, he stated, were consistent with
Wynell’s desires when made, affirmatively negating an essential element of undue
influence.4 In the no-evidence portion of his motion, he argued that there was no
household items, clothing, and personal effects—worth less than $10,000 at the time
of her death.
3
Testamentary capacity requires that the testator, at the time the will is
executed, must have sufficient mental ability to understand she is making a will, the
effect of making the will, and the general nature and extent of her property; to know
her next of kin and the natural objects of her bounty and the claims upon them; and
to have sufficient memory to collect in her mind the elements of the business
transacted and hold them long enough to perceive their obvious relation to each other
and form a reasonable judgment about them. Estate of Luce, No. 02-17-00097-CV,
2018 WL 5993577, at *8 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.);
Tieken v. Midwestern State Univ., 912 S.W.2d 878, 882 (Tex. App.—Fort Worth 1995, no
writ).
4
A claim of undue influence requires proving the existence and exertion of an
influence; that the influence operated to subvert or overpower the testator’s mind
when executing a document; and that the testator would not have executed the
document but for the influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963).
Influence is not “undue” unless the testator’s free agency is destroyed and a testament
produced that expresses the will of the one exerting the influence. Id. (explaining that
undue influence is separate and distinct from testamentary incapacity; “while
testamentary incapacity implies the want of intelligent mental power, undue influence
implies the existence of a testamentary capacity subjected to and controlled by a
4
evidence to support each of the elements of undue influence with regard to the 2008
and 2010 wills.
In their response to Michael’s motion, Jan, Donna, and Paula reminded the trial
court that based on Michael’s fiduciary relationship with his mother, he bore the
burden of proof to show the absence of undue influence with regard to the 2008 and
2010 wills, preventing a no-evidence summary judgment in his favor. They directed
the trial court to evidence that Michael had been Wynell’s attorney in fact, had taken
over Wynell’s financial affairs after Fred died, and had drained what assets were left
after various distributions to all four children until—in 2016—Wynell had less than
$10,000 in her estate; that when Wynell’s probate attorney had declined involvement
in drafting the 2008 will, Michael had engaged Barley to do it; and that when Wynell
executed the 2008 will, she was taking large amounts of medication on a daily basis
and was ultimately diagnosed with dementia and Alzheimer’s, calling into question her
testamentary capacity to execute both the 2008 and 2010 wills.
The trial court granted summary judgment for Michael on the traditional
ground with regard to the 2007 will’s revocation by the 2008 will and on the no-
evidence ground regarding undue influence. In its order, the trial court made no
ruling about which of the remaining wills would be admitted to probate and referred
to the 2008 will as “the purported will dated July 24, 2008.” The order also contained
domina[n]t influence or power”). The burden of proving undue influence is generally
upon the person contesting the document’s execution. Id.
5
a Mother Hubbard clause, stating that “[a]ll relief sought by Michael Kornegay in his
First Amended Motion for Partial Summary Judgment filed June 5, 2018 not expressly
granted herein is DENIED.” The trial court then signed an order severing the claims
disposed of by summary judgment into a new cause number.5
III. Discussion
In their first and third issues, Jan, Donna, and Paula argue that the trial court
erred by granting the no-evidence portion of Michael’s motion because Michael was
the party with the burden of proof and by granting the traditional portion of Michael’s
motion because he did not conclusively prove that Wynell had testamentary capacity
when she executed the 2008 will.6
5
In his appellee’s brief, Michael contends that his stepsisters failed to properly
invoke our jurisdiction because although the trial court severed the matters decided by
summary judgment into a new cause number, his stepsisters filed their notice of
appeal in the original cause number. We disagree. See Blankenship v. Robins, 878
S.W.2d 138, 139 (Tex. 1994) (per curiam) (providing that “the decisions of the courts
of appeals [should] turn on substance rather than procedural technicality”); George v.
Compass Bank, No. 04-15-00676-CV, 2016 WL 7119053, at *4 (Tex. App.—San
Antonio Dec. 7, 2016, pet. denied) (mem. op. on reh’g) (“Even though the notice of
appeal bears the original cause number, we hold the notice of appeal was a bona fide
attempt to invoke our jurisdiction, and we have jurisdiction to consider this appeal.”);
Butler v. Whitten, No. 02-13-00306-CV, 2014 WL 24232, at *2 (Tex. App.—Fort Worth
Jan. 2, 2014, no pet.) (mem. op. on reh’g) (“If there is no suggestion of confusion
regarding which judgment the appellant appeals, the misnumbering [of the trial court
cause number] should not defeat the appellate court’s jurisdiction.”).
6
Because Jan, Donna, and Paula’s first and third issues are dispositive, we do
not reach their second and fourth issues. See Tex. R. App. P. 47.1.
6
A. Burden of Proof in No-Evidence Summary Judgment Context
With regard to a no-evidence motion for summary judgment, after an adequate
time for discovery, the party without the burden of proof may move for summary
judgment on the ground that no evidence supports an essential element of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i); see Burges v. Mosley, 304 S.W.3d
623, 628 (Tex. App.—Tyler 2010, no pet.) (holding that because defendant had
burden of proof on affirmative defense, she could not properly move for no-evidence
summary judgment on that ground); Reyes v. Saenz, 269 S.W.3d 675, 676–77 (Tex.
App.—San Antonio 2008, no pet.) (op. on reh’g) (holding that trial court erred by
granting no-evidence summary judgment to plaintiffs on their own claim); see also
Estate of Danford, 550 S.W.3d 275, 282 (Tex. App.—Houston [14th Dist.] 2018, no
pet.); Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas: State &
Federal Practice, 60 S. Tex. L. Rev. 1, 18 (2019) (“If a party has the burden of proof on
claims or defenses, it may not properly urge a no-evidence summary judgment to
challenge those claims or defenses.”). In their first issue, Jan, Donna, and Paula argue
that because Michael was an undisputed fiduciary, he bore the burden of rebutting the
presumption of unfairness, making improper the trial court’s grant of his no-evidence
motion on undue influence.7
7
Jan, Donna, and Paula also argue in their first issue that the trial court erred by
granting Michael’s no-evidence motion on testamentary capacity, but the trial court
did not grant Michael’s no-evidence motion on that ground. Accordingly, we overrule
this portion of their first issue.
7
The person challenging the validity of an instrument generally bears the burden
of proving the elements of undue influence by a preponderance of the evidence.
Quiroga v. Mannelli, No. 01-09-00315-CV, 2011 WL 944399, at *5 (Tex. App.—
Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.); see Rothermel, 369 S.W.2d at
922 (“The burden of proving undue influence is upon the party contesting [the will’s]
execution.”). This general rule applies to transfers from parent to child. Quiroga, 2011
WL 944399, at *5. Such transfers, standing alone, do not give rise to a presumption
of undue influence, leaving the burden with the party challenging the transaction’s
validity. See id.8 This is because “nothing is more common or natural than for a
8
In Quiroga, the decedent’s ex-wife challenged the decedent’s having replaced
her on a joint bank account with his adult daughter, who the ex-wife alleged had
exercised undue influence in accomplishing the transaction. 2011 WL 944399, at *1.
Our sister court, in the memorandum opinion authored by Justice Jane Bland, now a
justice on the Supreme Court of Texas, held that the burden to prove no undue
influence under the facts of the case did not shift to the decedent’s daughter, relying
on Gates v. Asher, 280 S.W.2d 247, 250 (Tex. 1955). Id. at *5. In Gates, the respondent
had complained in the intermediate court about the trial court’s refusal to submit an
issue on the question of undue influence exerted by the petitioner over her mother in
procuring a deed’s execution. 280 S.W.2d at 250. The supreme court stated that the
intermediate court had properly overruled that complaint because a deed from a
parent to a child does not give rise to the presumption of undue influence and
because the respondents, who had retained the burden of proof on the issue, did not
refer to any evidence other than the mother’s frail, enfeebled condition and the fact
that the petitioner had lived with her off and on for a number of years. Id. The court
further noted that “the presumption of fraud or undue influence under certain
circumstances where the grantee occupies a confidential or fiduciary relationship to
the grantor” was not a rule that applied “to the transaction between a mother and
daughter.” Id.; see also Saufley v. Jackson, 16 Tex. 579, 587 (1856) (holding that, as to
deed from mother to daughter, “every presumption is in favor of the validity and
fairness of the deed” and that “to set aside the deed so made by the mother, it must
be proven without the aid of presumption, that she had been fraudulently practiced
8
[parent] to bestow gifts upon his [or her] children.” Hager v. Hager, 127 S.W.2d 234,
238 (Tex. App.—Eastland 1939, no writ); see Beville v. Jones, 11 S.W. 1128, 1130 (Tex.
1889) (explaining that “[i]n the case of a gift from a child to the parent[,] undue
influence may be inferred from the relation itself; but never where the gift is from the
parent to the child, and no suspicion whatever attaches to the latter,” but adding that
“there is no doubt that upon proof of the actual exercise of undue influence it may be
set aside”).
However, in cases involving fiduciary relationships, a presumption of undue
influence may arise, requiring the person receiving the benefit to prove the fairness of
the transaction. See Danford, 550 S.W.3d at 281–82; Quiroga, 2011 WL 944399, at *5;
Price v. Taliaferro, 254 S.W.2d 157, 163 (Tex. App.—Fort Worth 1952, writ ref’d n.r.e.)
(noting that when “the ground of . . . undue influence is plead[ed], as in this case,
against the devisee who occupies a confidential or fiduciary relation to the maker of
the instrument, the burden rests on the devisee to show the fairness of the transaction
by appropriate evidence,” but holding that no presumption of unfairness arises merely
upon by some person or persons, for the purpose of procuring the deed, and that it
was so procured”). However, there was no indication in Gates or Saufley of whether
the child had also been the parent’s attorney in fact. Cf. Millican v. Millican, 24 Tex.
426, 451 (1859) (stating that the parties’ relationship, in which the defendant-son
attended to the transaction of his mother’s business in the probate court as
administratrix of her deceased husband’s estate and “had the superintendence of her
out of door affairs generally” could “scarcely be thought a case of agency, of a
character which awakens the jealous scrutiny of a court of equity, into the dealings of
the parties”).
9
from the fact that the deceased and devisee were siblings). And “a power of attorney
creates an agency relationship, which is a fiduciary relationship as a matter of law.”
Miller v. Lucas, No. 02-13-00298-CV, 2015 WL 2437887, at *4 (Tex. App.—Fort
Worth 2015, pet. denied) (mem. op.) (noting that a fiduciary owes his principal a high
duty of good faith, fair dealing, honest performance, and strict accountability); see
Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 231 (Tex.
2019) (“An agreement creating a power of attorney creates a fiduciary relationship.”);
Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 700 (Tex. 2007) (noting
that an agency relationship imposes certain fiduciary duties on the parties); Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex. 2002) (“Under the common law of
most jurisdictions, including Texas, agency is also a special relationship that gives rise
to a fiduciary duty.”). Thus, an attorney in fact, as a fiduciary, carries the burden of
proof to overcome the presumption of unfairness that arises in self-dealing
transactions. See Danford, 550 S.W.3d at 285; see also Tex. Bank & Tr. Co. v. Moore, 595
S.W.2d 502, 509 (Tex. 1980) (stating that a fiduciary relationship puts on a profiting
fiduciary “the burden of showing the fairness of the transactions”); Healey v. Healey,
529 S.W.3d 124, 135 (Tex. App.—Tyler 2017, pet. denied) (“A fiduciary may not use
his position to self-deal.”).
Michael argued to the trial court, see infra n.14, and argues on appeal that
because Danford, a 2018 opinion, was decided after the effective date of the
amendment to Estates Code Section 751.101, it does not apply here. However, the
10
law in effect at the time Danford was decided was the same law that was in effect in the
instant case, and the facts here are quite similar to those present in Danford. In
Danford, the deceased executed a will naming Robert Stawarczik9 as the executor and
sole beneficiary of her estate on the same day in 2010 that she executed a general
power of attorney in his favor. 550 S.W.3d at 278. All of these documents were
executed at the deceased’s home in front of witnesses whom Stawarczik had brought
and who had not previously met her. Id. Her nephews opposed the will’s admission
to probate, arguing that she had lacked testamentary capacity and that Stawarczik had
exercised undue influence over their aunt. Id. at 278–79.
Stawarczik filed a traditional and no-evidence motion for summary judgment,
arguing in his no-evidence motion that there was no evidence of the lack of
testamentary capacity or undue influence. Id. The nephews responded by attaching a
copy of the general power of attorney appointing Stawarczik as their aunt’s agent, id.
at 279, and argued that this evidence of a fiduciary relationship shifted the burden of
proving lack of undue influence to Stawarczik. Id. at 285. The court agreed, holding
that when the nephews presented some evidence of a fiduciary relationship—i.e.,
Stawarczik’s appointment as attorney-in-fact on the same day as the will’s execution—
9
The court does not make clear in Danford who Stawarczik was to the deceased,
other than that he was not her husband or child. 550 S.W.3d at 278 n.2.
11
this raised a presumption of undue influence sufficient to defeat Stawarczik’s no-
evidence motion.10 Id. at 285–86.
Michael contends that in Danford, the Fourteenth Court improperly interpreted
the unfairness presumption applicable to a fiduciary in self-dealing transactions and
relies on the analysis of the Beaumont Court in Fielding v. Tullos to contend that this a
rebuttable presumption. No. 09-17-00203-CV, 2018 WL 4138971, at *7 (Tex. App.—
Beaumont Aug. 20, 2018, no pet.) (mem. op.). In Fielding, the estate’s independent
administrator (the deceased’s niece) challenged the deceased’s having changed the
beneficiary designation on his accounts to his caretaker, complaining that a fiduciary
relationship had existed between the deceased and the caretaker that gave rise to a
presumption of undue influence. Id. at *1, *5. The caretaker moved for summary
judgment on undue influence.11 Id. at *2–3. In her response, the administrator
pointed out that the caretaker had signed one of the account agreements as “agent”
and that the deceased had executed a power of attorney for his accounts naming the
caretaker as his agent. Id. at *3.
10
The court also held, among other things, that the trial court had erred to the
extent it had granted Stawarczik’s no-evidence motion on the issue of testamentary
capacity because Stawarczik had the burden on that issue. Id. at 282.
11
The Fielding court construed the caretaker’s motions as asserting only
traditional grounds for summary judgment. 2018 WL 4138971, at *5. Thus, we
question its applicability to the issue before us regarding burden-shifting on a no-
evidence summary judgment.
12
While the Beaumont court in Fielding did hold that the presumption is a
rebuttable presumption that is extinguished with the offering of contrary evidence,
not one that shifted the ultimate burden of proof of unfairness, id. at *7, none of the
cases cited in Fielding regarding this burden-shifting proposition involved undue
influence in a fiduciary self-dealing situation. See id. (citing Hot Head, Inc. v. Safehouse
Habitats (Scot.), Ltd., 333 S.W.3d 719, 730 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) (involving trademark infringement); Long v. Long, 234 S.W.3d 34, 37 (Tex.
App.—El Paso 2003, pet. denied) (involving the characterization of marital property
on divorce); All Am. Builders, Inc. v. All Am. Siding, Inc., 991 S.W.2d 484, 489 (Tex.
App.—Fort Worth 1999, no pet.) (involving trademark infringement and citing Gen.
Motors Co. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1983) (involving products liability));
Tex. Nat. Res. Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex. App.—Austin
1996, no writ) (involving an employment dispute); Garza v. City of Mission, 684 S.W.2d
148, 152 (Tex. App.—Corpus Christi 1984, writ dism’d w.o.j.) (involving employment
termination)). Accordingly, we are unpersuaded by Michael’s argument.
To the contrary, Danford and case law from the supreme court and other courts
of appeals reflect that in situations involving self-dealing in fiduciary or confidential
relationships, a presumption of unfairness arises that shifts both the burden of
production and the burden of persuasion to the fiduciary seeking to uphold the
transaction. See Moore, 595 S.W.2d at 509; see also Stephens Cty. Museum, Inc. v. Swenson,
517 S.W.2d 257, 260 (Tex. 1974) (observing that when a fiduciary relationship existed
13
between sisters and their brother, who was operating under their power of attorney
and who was also a director of the museum to which the sisters had made a
contribution that they later sought to set aside, “[u]nder such conditions, equity
indulges the presumption of unfairness and invalidity, and requires proof at the hand
of the party claiming validity and benefits of the transaction that it is fair and
reasonable”); Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964) (noting that after
respondent “established that the conveyance was executed and delivered during the
existence of the attorney-client relationship, the burden was on petitioner to show
that his acquisition of the interest conveyed by the deed was fair, honest[,] and
equitable”); Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 576 (Tex. 1963)
(“Contracts between a corporation and its officers and directors are not void but are
voidable for unfairness and fraud with the burden upon the fiduciary of proving
fairness.”); McAuley v. Flentge, No. 06-15-00051-CV, 2016 WL 3182667, at *7 (Tex.
App.—Texarkana June 8, 2016, pet. denied) (mem. op.) (citing Swenson, 517 S.W.2d at
260; Archer, 390 S.W.2d at 740); Jordan v. Lyles, 455 S.W.3d 785, 792 (Tex. App.—Tyler
2015, no pet.) (op. on reh’g) (“Even in the case of a gift between parties with a
fiduciary relationship, equity indulges the presumption of unfairness and invalidity,
and requires proof at the hand of the party claiming validity of the transaction that it
is fair and reasonable.”).12 Thus, we decline Michael’s invitation to follow Fielding.
12
While Michael contends that he produced evidence of fairness that, under his
Fielding-based rebuttable-presumption theory, would have overcome the presumption
14
It is undisputed that Michael held his mother’s power of attorney when he
assisted in securing the 2008 will, which enhanced his share of the estate13 and upon
which he relies in attempting to show that she revoked the 2007 will. As the holder of
his mother’s power of attorney, Michael was her fiduciary. See Bombardier Aerospace
Corp., LLC, 572 S.W.3d at 231; Lucas, 2015 WL 2437887, at *4. Thus, Michael’s
fiduciary status shifted the burden to him to overcome the resulting presumption of
unfairness. See Moore, 595 S.W.2d at 509. Because the burden of proof shifted to
Michael,14 the trial court was precluded from granting his no-evidence motion on that
basis. See Tex. R. Civ. P. 166a(i). We sustain Jan, Donna, and Paula’s first issue as to
undue influence.
of unfairness, his evidence would have raised only a fact issue for the trier of fact,
making summary judgment inappropriate. See Ginther v. Taub, 570 S.W.2d 516, 525–26
(Tex. App.—Waco 1978, writ ref’d n.r.e.).
13
The 2008 will deleted Donna and Paula as beneficiaries. Michael also used
Wynell’s power of attorney to make arrangements for her personal care, her finances,
her estate planning, and the family ranch, and after Wynell gave him signatory
authority over her bank accounts, he made transfers to himself and to other accounts,
including his offshore bank account.
14
Although Michael argued in the trial court that the 2017 Durable Power of
Attorney Act made “case authority cited by [his stepsisters] arising under the former
statute” (former Texas Probate Code § 489B(a), now Estates Code Section 751.101)
no longer applicable, he concedes on appeal that the statutory amendment “applies
only to [powers of attorney] executed after the effective date” of September 1, 2017.
And although Jan, Donna, and Paula contend that the 2017 Act, if applicable, would
impose on Michael the duty to preserve the principal’s estate plan, in light of our
disposition of this issue, we need not reach this argument. See Tex. R. App. P. 47.1.
15
B. Traditional Summary Judgment Requires Conclusive Proof
In their third issue, Jan, Donna, and Paula argue that Michael did not
conclusively prove that Wynell had testamentary capacity on the date that she
executed the 2008 Will and that therefore the trial court’s grant of traditional
summary judgment was erroneous.
An applicant for the probate of a will must prove among other facts that the
testator had testamentary capacity at the time of the will’s execution and that the
testator 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 “[t]he 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. 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 memory.”
Harkins v. Crews, 907 S.W.2d 51, 58 (Tex. App.—San Antonio 1995, writ denied).
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. As is
pertinent to this appeal, 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
16
revoked all prior wills. See Tex. Est. Code Ann. § 256.152; Harkins, 907 S.W.2d at 58;
see also Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (“To
prevail on a motion for summary judgment, a movant must establish that there is no
genuine issue of material fact and that the movant is entitled to judgment as a matter
of law.”).
To prevail on a traditional motion for summary judgment, a movant with the
burden of proof must provide conclusive proof as to each element on which he bears
the burden. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Only
when the movant produces conclusive evidence establishing the right to summary
judgment does the burden shift to the nonmovant to come forward with competent
controverting evidence that raises a fact issue. Chavez v. Kan. City S. Ry. Co., 520
S.W.3d 898, 899–900 (Tex. 2017) (per curiam) (“At trial, a presumption operates to
establish a fact until rebutted[] but not in summary judgment proceedings.”). If the
movant does not meet the burden of producing conclusive proof, then the burden
never shifts to the nonmovant to present any evidence, or to respond, at all. See id. at
900–01.
As the supreme court explained in City of Keller v. Wilson, there are several types
of conclusive evidence, which may or may not be undisputed evidence. 168 S.W.3d at
815, 816 (Tex. 2005) (“Undisputed evidence and conclusive evidence are not the
same—undisputed evidence may or may not be conclusive, and conclusive evidence
may or may not be undisputed.”). One type of undisputed evidence that rises to the
17
level of conclusive proof is evidence that a party admits is true. Id. at 815. For
example, “a claimant’s admission that he was aware of a dangerous premises
condition is conclusive evidence he needed no warning about it.” Id. (citing Wal-Mart
Stores, Inc. v. Miller, 102 S.W.3d 706, 709–10 (Tex. 2003) (per curiam)).
Another type of conclusive proof is evidence that allows only one logical
inference, even if disputed. Id. at 814, 816 (noting, for example, that in Murdock v.
Murdock, 811 S.W.2d 557, 560 (Tex. 1991), although a child’s mother directly disputed
that she had engaged in conjugal relations with anyone else during the relevant time,
the blood test conclusively proved that the defendant was not the child’s father). “By
definition, [evidence that allows only one logical inference] can be viewed in only one
light, and reasonable jurors can reach only one conclusion from it.” Id. at 814. Thus,
for this evidence to rise to the level of conclusive proof, it must be of the type that
reasonable jurors could not disbelieve. Id. at 815. Most examples of undisputed
evidence that become conclusive include “physical facts that cannot be denied.” Id.
(citing Cty. of Bexar v. Santikos, 144 S.W.3d 455, 460–61 (Tex. 2004) (holding that
undisputed evidence that access remained along 90% of a tract’s frontage conclusively
disproved an impaired-access claim)). While “[i]t is impossible to define precisely
when undisputed evidence becomes conclusive,” the test is whether reasonable jurors
are free to disbelieve the evidence. Id. at 815–16. Even if undisputed, evidence is not
conclusive if reasonable jurors could differ in their conclusions. Id.
18
To discharge his summary judgment burden, Michael offered four witnesses—
Donald Barley, Sandra Barley, Marti Luttrall,15 and Linda Solomon—who each
attested to Wynell’s capacity at the time the 2008 Will was executed. However,
because a factfinder was not bound to believe Michael’s four witnesses, his proof does
not fall within the category of conclusive proof that allows only one logical inference.
Nor does any admission as to Wynell’s testamentary capacity appear in this record.
Because Michael failed to present conclusive proof of Wynell’s testamentary capacity,
he fell short of the legal standard that would entitle him to a traditional summary
judgment, and the burden never shifted to Jan, Donna, and Paula to produce any
evidence at all. Accordingly, the trial court erred when it granted Michael’s motion
for traditional summary judgment, and we sustain Jan, Donna, and Paula’s third issue.
IV. Conclusion
Having sustained part of Jan, Donna, and Paula’s first issue and having
sustained their third issue, we reverse the trial court’s judgment and remand this case
to the trial court for further proceedings. See Tex. R. App. P. 43.2(d).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: December 19, 2019
15
Sandra and Marti witnessed the 2008 will.
19