Opinion
NO. 01-18-00822-CV
11-21-2019
IN RE ESTATE OF BEN WILLIAM ROBERTSON, SR., Deceased
On Appeal from the Probate Court No. 4 Harris County, Texas
Trial Court Case No. 462524
MEMORANDUM OPINION
Benson William Robertson filed an application to admit his father's 1991 will to probate and to be appointed executor, as named in the will. His sister, Ramona Mayon, argued that the 1991 will had been revoked in 1993. After a bench trial, the trial court found that the 1991 will had not been revoked and admitted it to probate. Mayon appeals, arguing that: (1) the will admitted to probate was not the original; (2) Robertson did not prove that the will had not been revoked; and (3) the judge made a "religious reference" instead of explaining the legal basis for her ruling.
We affirm.
Background
Robertson and Mayon have been estranged for years over a dispute centered on inheritance of their mother's diamond ring. After their father died in 2017, Robertson filed an application to probate his 1991 will and for issuance of letters testamentary. Robertson is both a beneficiary of his father's will and the named executor. The will left the decedent's entire estate to Robertson and named Mayon as a contingent beneficiary if Robertson died before his father. The will was signed by the decedent on May 9, 1991, and the affidavit of execution and attestation recited that the testator was "duly sworn," had signed voluntarily, and was "of lawful age, of sound mind and under no undue influence." The will was signed by three witnesses, and it was notarized by Zenny Martinez.
Mayon filed a general denial, in which she asserted that her father revoked the 1991 will with another will, which he showed her in 1993. Robertson moved for traditional summary judgment, and Mayon did not respond. At the summary-judgment hearing, the trial court acknowledged that the will was a self-proving will, but because the affidavit did not recite that the witnesses were over the age of 14, the court denied the motion for summary judgment.
Mayon attended the bench trial by telephone. The court acknowledged that it had the original of the document offered for admission to probate as the decedent's will. Zenny Martinez, who notarized the will, testified that she recognized the document, her signature, and her notary stamp. She also recognized the signature of one of the witnesses with whom she had worked for "a number of years." She also testified that she checked the decedent's identification and he was over the age of 18 when he signed the will. She also testified that she and the witness with whom she worked were also over the age of 18 when they signed the will.
Robertson's counsel acknowledged that because Mayon was appearing by telephone, she was unable to see the actual documents tendered in the courtroom. After noting that Mayon had copies of the documents, he asked her whether she had "reviewed what we filed with this Court—our application and the copy of the Will?" Although she did not have a copy of the will in front of her, she agreed it was authentic and that her father had signed it. Mayon was aware of the 1991 will, which her father executed due to concerns about her much-younger brother obtaining a college education. Mayon testified that when she saw her father in January 1993, he showed her another will, which she saw him put in a safe in his home office. According to Mayon, her father decided that because Robertson was succeeding financially, he could "pay [for] his own education." She had no documentary evidence of the 1993 will's existence nor had she ever discussed it with her father by email.
Robertson testified that he was the decedent's son, he was aware of the will's existence in 1991, and his father gave him the will before undergoing surgery in 2017. Robertson testified that his father was over the age of 18 and of sound mind when he signed the will. Robertson's father had possession of the will from 1991 until delivering it to Robertson along with other personal documents before his surgery in 2017. Robertson's father told him that this was his last will and testament. Robertson had no knowledge of a subsequent will, and he testified that his father's will was never revoked. Robertson said that his father cautioned him that the will, which did not bequeath anything to Mayon, could create problems within the family.
Mayon questioned Robertson about real property in Mansfield, Louisiana that had passed from their grandmother to their father. Mayon contended that this property was producing oil or gas. Robertson testified that the property in Mansfield was not part of their father's estate because he had transferred most of it to him years earlier, before the drilling and completion of a "proving well."
Finally, Mayon testified about her disappointment regarding the case and her disbelief that her father had excluded her from the will. She said: "My father loved me. There was never any rancor or I have nothing else to say about this case. It's heartfully sad to be here. And I appreciate so much the Court's time in sorting this out, and I rest my case." Before admitting the will to probate and appointing Robertson executor of the estate, the trial court offered some sympathetic comments about Mayon's disappointment with the outcome of the proceeding and her "sincere . . . hope" that despite the lack of an inheritance, Mayon would "find that your father blessed you in many other ways."
In its order probating the will and authorizing letters testamentary to issue in favor of Robertson, the trial court made fact findings. Relevant to this appeal, the trial court found that the will offered for probate "was executed on May 9, 1991 with the formalities and solemnities and under the circumstances required by law to make it a valid Will." The court also found that the will "has not been revoked by Decedent."
Analysis
Mayon raises three issues. The first issue asserts that the will admitted to probate was not the original but a copy. The second issue, liberally construed, challenges the legal sufficiency of the evidence to support the trial court's finding that the 1991 will was never revoked. The third issue addresses the trial court's comments expressing her hope that Mayon would find that her father had blessed her in in nonmonetary ways.
I. Authenticity of the will
Mayon argues on appeal that the will admitted to probate was not the original will, based on the comments made by Robertson's counsel when he inquired if she had been afforded an opportunity to review the application for probate and a copy of the will. Mayon appeared at trial remotely—by telephone—and was not able to see the original will that was in the courtroom at trial. Robertson testified that his father had possession of the original will from 1991 until he delivered it to him in 2017.
Robertson argues that this issue is waived for inadequate briefing. An appellant's brief must "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). Pro se litigants must comply with the same procedural rules as represented parties. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). We construe appellate briefs "reasonably, yet liberally," because "appellate courts should reach the merits of an appeal whenever reasonably possible." Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008). Mayon has provided no citation to authorities or to the record to support reversal based on the authenticity of the will. We overrule her first issue. See TEX. R. APP. P. 38.1(i); Mansfield State Bank, 573 S.W.2d at 185.
II. Revocation of the will
In her second issue, Mayon argues that Robertson made no attempt to show that the will was not revoked. We construe this as a challenge to the legal sufficiency of the evidence to support the trial court's finding of fact that the 1991 will was not revoked by the decedent. Robertson argues that this issue is waived because it was not preserved in the trial court. Because the case was tried to the court, Mayon was not required to preserve error as to any sufficiency challenges. See TEX. R. APP. P. 33.1(d); N.K. Res., Inc. v. Durham, No. 01-06-00904-CV, 2007 WL 1953715, at *1 (Tex. App.—Houston [1st Dist.] July 6, 2007, pet. denied) (mem. op.).
"In an appeal from a bench trial, we review a trial court's findings of fact under the same sufficiency of evidence standards used when determining whether sufficient evidence exists to support a jury finding." Ifiesimama v. Haile, 522 S.W.3d 675, 683 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). "In a bench trial, the trial court evaluates the credibility of the witnesses, determines the weight of the testimony, and resolves conflicts and inconsistencies in the testimony." Id. at 684 (citing Merry Homes, Inc. v. Chi Hung Luu, 312 S.W.3d 938, 943 (Tex. App.—Houston [1st Dist.] 2010, no pet.)). Evidence is legally insufficient when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In conducting a legal sufficiency review, we review the evidence in the light most favorable to the judgment. Id. at 822.
At trial, Mayon testified that in 1993, her father showed her a will that replaced the 1991 will. She testified that they never discussed it again, and she had no documentary evidence to support her assertion. Robertson testified that when his father delivered the 1991 will to him, he said that it was his last will and testament, and he warned Robertson that the will could create conflict because he did not bequeath anything to Mayon. Robertson testified that, as far as he knew, his father had never revoked the 1991 will.
Viewing the evidence in the light most favorable to the trial court's judgment, we hold that the evidence is legally sufficient to support a finding that the decedent did not revoke the 1991 will. See id. We overrule Mayon's second issue.
III. The trial court's comments
Finally, Mayon argues that the trial court's expression of sympathy was an irregular ruling because it did not refer to any part of the will. She also asserts that there should have been evidence—such as testimony from witnesses to the will— explaining why she was excluded from her father's will. Mayon has provided no citation to authorities or to the record to support reversal based on what she characterizes as an irregular ruling. See TEX. R. APP. P. 38.1(i). Moreover, the trial court's comments were not an irregular ruling because a trial court's "oral statements at trial are not findings of fact or conclusions of law." Ifiesimama, 522 S.W.3d at 684. Furthermore, no explanation of why her father chose to exclude her from his will was needed because "Texas does not have a 'forced heirship' statute protecting children from disinheritance by either mother or father." Najvar v. Vasek, 564 S.W.2d 202, 207 (Tex. Civ. App.—Corpus Christi 1978, writ ref'd n.r.e.). We overrule Mayon's third issue. See TEX. R. APP. P. 38.1(i); Mansfield State Bank, 573 S.W.2d at 185.
Conclusion
We affirm the trial court's order probating the will and authorizing letters testamentary.
Peter Kelly
Justice Panel consists of Justices Keyes, Lloyd, and Kelly.