Opinion
No. 05-11-00008-CV
Opinion issued November 10, 2011.
On Appeal from the Probate Court No. 2 Dallas County, Texas, Trial Court Cause No. PR-10-3046-2.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
This is an appeal from an order admitting the will of William Hoffman Hudson to probate and issuing letters testamentary to Hudson's surviving wife, appellee Cathy Kinkaid Hudson. In two issues, Hudson's son, appellant James C.C. Hudson (Chris), argues the probate court improperly denied him his right to a jury trial and his right to participate at the hearing. For reasons set out below, we agree. Accordingly, we reverse the trial court's order and remand for further proceedings consistent with the opinion.
Following the death of her husband, Mrs. Hudson filed an application for probate of will and issuance of letters testamentary. In her application, she alleged her husband left a valid written will dated September 2, 2009 that was never revoked; the will was self-proved in the manner provided by law; the will named her independent executrix without bond; and she was not disqualified from accepting letters testamentary.
The next day, Chris filed an answer in which he generally "denie[d] each allegation made by Applicant in her Application for Probate of Will and Issuance of Letters Testamentary, and demand[ed] strict proof thereof." He requested a jury trial and paid the jury fee. Additionally, he filed an application for temporary administration pending will contest in which he asserted that Mrs. Hudson had "offered for probate a purported will of Decedent dated September 2, 2009" and that he had contested the 2009 will. In the application, he requested the probate court to appoint a disinterested person as temporary administrator of his father's estate pending resolution of the will contest.
After Chris filed his pleadings, Mrs. Hudson filed a motion to transfer a different lawsuit pending in the 162nd Judicial District Court to the probate court. The lawsuit was filed by Chris's brother, Andrew, against the decedent and Mrs. Hudson. In her transfer motion, Mrs. Hudson asserted the suit involved claims against her husband and a closely held corporation that is a primary asset of the estate. She further asserted she had filed an application to probate the will, and Chris had "filed a contest to the Will and requested the appointment of a Temporary Administrator during the pendency of the contest." She relied on Chris's "contest to the will" as the basis for the transfer: "Due to the contest, there is a necessity for the immediate appointment of a personal representative of the Estate, an such personal representative will be a necessary party to the Lawsuit. Transfer of the Lawsuit is necessary to protect the assets and efficiently administer the Estate."
A week later, Mrs. Hudson filed an "Application, In the Alternative, To Probate Will," in which she asked the probate court to probate a will dated June 13, 2006, in the event the 2009 will was not admitted to probate. Mrs. Hudson alleged the original 2006 will could not be produced because it "disappeared from Decedent's files without his knowledge or consent." She alleged her husband executed the 2009 will to replace the 2006 will and the "dispositive terms" of the two wills were identical.
Thereafter, Mrs. Hudson obtained a setting for a bench prove-up hearing. Chris filed a written objection, asserting he had timely requested a jury and paid the proper jury fee. He argued that by filing a general denial and jury demand, he was "entitled to introduce evidence before a jury which tends to disprove any of the facts in Cathy's Application, and to rebut the evidence she presents." Chris asked the probate court to "enter a scheduling order with a trial by jury after an adequate period for discovery[.]"
In her written response, Mrs. Hudson argued Chris's answer was not a contest of the application to probate because it was "devoid of any allegations regarding the basis for any opposition or contest." Further, she argued that because he had not filed a "proper contest," he had no right to a jury on an uncontested probate matter. In the alternative, she filed special exceptions and requested that Chris amend his answer to "allege with specificity each and every reason" for contesting her application.
On the day of the hearing, Chris objected to proceeding without a jury and argued his general denial "puts her to her proof of all the facts stated in her application for probate" and was sufficient to both "offer evidence and rebut her evidence, whatever it is." Mrs. Hudson argued the proceeding was an uncontested matter because Chris did not make a specific allegation to contest the will. The probate judge overruled Chris's objection, concluding the application was uncontested, and refused to allow Chris to participate in the proceeding. Mrs. Hudson then briefly testified. At the conclusion of her testimony, the judge admitted the 2009 will to probate and ordered that letters testamentary be issued once Mrs. Hudson took the oath required by law. Chris filed a motion for reconsideration and motion for new trial, which the probate judge denied. This appeal ensued. In two issues, Chris argues the probate court erred by admitting the will to probate and appointing Mrs. Hudson as independent executrix without allowing him a jury trial or allowing him to participate in the hearing on the application. Chris argues Mrs. Hudson put testamentary capacity, will formalities, and non-revocation at issue, along with her qualifications to serve as executrix, when she filed her application to probate the will. Further, he asserts his general denial of those facts alleged in the application was sufficient to satisfy the probate code's requirement of an "opposition in writing," and because the matter was contested, he was entitled to a jury trial. In response, Mrs. Hudson argues a general denial is not sufficient to oppose the probate of a will, and thus the matter was not contested. Because the matter was not contested, she asserts, Chris had no right to a jury trial or to participate at the hearing.
Parties to a contested probate matter are entitled to a jury trial as in any other civil matter. See Tex. Prob. Code Ann. § 21 (West 2003). The question here is whether Mrs. Hudson's application was contested, and specifically, whether Chris's response to the application was sufficient to contest her application. Section 10 of the Texas Probate Code governs a proceeding before a will has been admitted to probate. Section 10 provides: Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits.
Tex. Prob. Code Ann. § 10 (West 2003).
The only express requirement regarding the "opposition" is that it be in "writing." In re Estate of Rosborough, 542 S.W.2d 685, 687 (Tex. Civ. App.-Texarkana 1976, writ ref'd n.r.e.). The statute prescribes neither the form nor the essentials of the "opposition." However, the sufficiency of the pleadings has been previously addressed. See In re Estate Merrick, 630 S.W.2d 500, 502 (Tex. Civ. App.-Amarillo 1982, writ ref'd n.r.e.) (op. on motion for reh'g).
In Estate of Merrick, appellee Keith L. Merrick filed suit to compel the appellant, Rowena G. Jones, and others to produce a will he alleged was in their possession. 630 S.W.2d at 501. Jones then filed an application for letters of administration alleging the decedent had not left a valid will. Another appellee then filed an application to probate an alleged lost will. After a hearing, the court admitted the will to probate.
In the appeal, appellees argued the appeal should be dismissed because Jones had not filed a proper pleading under section 10. In rejecting that argument, the court first noted that less strictness is required when pleading in probate matters, particularly when the averments questioned relate to matters that the other party must affirmatively establish. Id. at 502. The court explained that the pleadings contained competing allegations: that the deceased left no will and that the deceased left a will under which some of the parties were beneficiaries. After reviewing the pleadings, the court concluded: We think the pleadings are sufficient to show there were two or more parties or claimants to the assets of this estate, each of whom had some legally ascertained pecuniary interest, real or prospective, which would be impaired or benefited, or in some manner materially affected, by the probate or nonprobate of the will in question, and that a bona fide dispute existed between them concerning the validity of the alleged will. This is sufficient to constitute all of the claimants persons `interested in an estate.' Reasonableness and practicality dictate that pleadings exist joining issue and sufficiently comply with [section 10 of the probate code]. (Citations omitted.)
Id.
Here, having reviewed the pleadings on file in this case, we likewise conclude that reasonableness and practicality dictate this proceeding was sufficiently opposed within the purview of section 10. First, we note the proponent of a will has the burden to establish that the testator executed the will with formalities and solemnities under circumstances required by law to make it a valid will and that he did not revoke it. See Estate of Rosborough, 542 S.W.2d at 688. This burden never shifts, and it is the duty of the court in proceedings to probate wills, whether contested or not, to determine that the instrument being offered for probate meets the statutory requisites of a will before admitting the will to probate. Id. One who offers a will for probate with the self-proving certificate properly executed and attached to the will makes out a prima facie case that the will has been properly executed and may have the will admitted to probate if she has fulfilled the other requirements of section 88 of the probate code. Id.; see Tex. Prob. Code Ann. § 88 (West 2003) (setting out proof required for probate of will and issuance of letters testamentary). If an opposition is filed, then the opponent must put on proof to overcome the proponent's prima facie case. Id. The proponent of a self-proved will may elect to stand on her prima facie case made out by the self-proving affidavits or she may go forward with the evidence by calling one or more of the witnesses to the stand to testify. Id.
In her application, Mrs. Hudson made the necessary statutory allegations. Chris denied "each allegation," demanded proof, and prayed the probate court deny her requested relief, that is, admission of the will to probate and issuance of letters testamentary. Thus, the substance of his response disputed the very facts Mrs. Hudson was required to prove to have the will probated. Because Chris took issue only with matters which Mrs. Hudson was required to affirmatively establish, less strictness was required in his pleadings. We see no substantive difference in Chris denying the allegations or "opposing" the allegations, nor does the language of the statute require that Chris identify with specificity his grounds for opposition. Moreover, on the same day he filed his response to Mrs. Hudson's application, he also filed an application for temporary administration asserting that Mrs. Hudson had offered for probate a "purported will" and asked the probate court to appoint a disinterested person to serve as the temporary administrator pending resolution of the will contest. Finally, in addition to Chris's pleadings, Mrs. Hudson recognized Chris's opposition to the will as shown in her motion to transfer, which relied upon Chris's "contest of the will" as the basis for the requested relief. These pleadings show there are two or more parties or claimants to this estate with a legally ascertained pecuniary interest, real or prospective, that would be impaired or benefitted, or otherwise materially affected, by the probate or nonprobate of the 2009 will, and that a bona fide dispute exists about the validity of that will. In reaching this conclusion, we have considered Mrs. Hudson's assertion that Chris's response violates "fair notice pleading standards." Our analysis above adequately addresses this concern. Additionally, Mrs. Hudson clearly was aware of the procedure to gain more specificity in pleading when she filed special exceptions. (Because the probate court determined Chris failed to sufficiently oppose the application, it did not rule on Mrs. Hudson's special exceptions.) Because Chris sufficiently opposed Mrs. Hudson's application to probate will, he was entitled to both a jury trial and to participate at the hearing. The trial court erred in concluding otherwise. We sustain both issues. We reverse the trial court's order admitting the will to probate and remand for further proceedings consistent with the opinion.