Opinion
No. 04-15-00499-CV
05-04-2016
IN THE ESTATE OF Louis S. BERNAL, Deceased
MEMORANDUM OPINION
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2015-PC-0983
Honorable Kelly Cross, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
In this restricted appeal, Robert Gomez challenges the probate court's order admitting Louis S. Bernal's will to probate. In his first five issues, Gomez contends the probate court erred in failing to admit a codicil to the will to probate. In arguing his sixth issue, Gomez contends citation was never served with regard to an amended application to admit the will to probate. In his seventh, eighth, and ninth issues, Gomez contends the executor breached various duties owed to the beneficiaries or devisees under the codicil. In his tenth issue, Gomez contends the probate court erred in admitting the will to probate without the joinder of the beneficiaries under the codicil as necessary parties. We affirm the probate court's order.
BACKGROUND
Louis S. Bernal died on February 24, 2015. On March 19, 2015, Louis's son, Philip Bernal, filed an application titled "Application for Probate of Will and Codicil and Issuance of Letters Testamentary." The application was accompanied by a written will dated June 2, 2000, which the application stated was self-proved and never revoked. The application also stated Louis left a codicil to his will which was never revoked. The application prayed that the will be admitted to probate. The prayer did not request that the codicil be admitted to probate. The record reflects that citation was properly posted.
On April 2, 2015, Philip filed an amended application titled "Amended Application for Probate of Will and Issuance of Letters Testamentary." The amended application did not reference the codicil and again prayed only that the will be admitted to probate.
On April 13, 2015, the probate court signed an order admitting the will to probate. In the typewritten order, the probate court interlineated that the codicil was not admitted to probate. Gomez timely filed a notice of restricted appeal.
RESTRICTED APPEAL REQUIREMENTS
To prevail on a restricted appeal, the appellant must establish: (1) the notice of restricted appeal was filed within six months after the judgment was signed; (2) the appellant was a party to the underlying lawsuit; (3) the appellant did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); TEX. R. APP. P. 30. The only issues presented in this appeal address whether error is apparent on the face of the record. Philip does not contend Gomez failed to meet the first three requirements.
ADMISSIBILITY OF CODICIL
In his first five issues, Gomez contends the probate court erred in not admitting the codicil to probate. Philip responds this issue is not ripe for our consideration because the codicil was not offered for probate and no evidence was presented to prove the codicil should be admitted to probate. We agree with Philip.
"A codicil is a testamentary writing that is supplementary to an earlier testamentary writing and must be executed with the formalities required in the making of a will." Phillips v. Copeland, No. 01-12-00492-CV, 2013 WL 1932179, at *4 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.); see also In re Estate of Jansa, 670 S.W.2d 767, 767-68 (Tex. App.—Amarillo 1984, no writ). These formalities include requirements that the codicil be in writing, signed by the testator in person, and attested by two or more credible witnesses. TEX. ESTATES CODE ANN. § 251.051 (West 2014).
In this case, Philip did not offer the codicil for probate or attempt to prove it was executed with the requisite formalities. The procedural history of the instant case is similar to the procedural history in Harkins v. Crews, 907 S.W.2d 51 (Tex. App.—San Antonio 1995, writ denied).
In Harkins, the appellees applied to probate a 1983 will and its codicils. 907 S.W.2d at 54. The trial court admitted the 1983 will to probate, but "[t]he codicils were not proven at trial and were not admitted to probate." Id. at 54-55.
On appeal, the appellants raised a sufficiency challenge to the admission of the 1983 will. Id. at 58. In addressing the sufficiency challenge, the Harkins court noted, "[a]ppellees initially pleaded to admit both the 1983 will and its codicils to probate, but they did not place the codicils into evidence or put on proof that the codicils were executed with the requisite formalities." Id. at 58. The appellees suggested that if the court concluded the codicils could be admitted to probate, the court could properly remand the cause to the trial court "for the limited purpose of permitting appellants to prove up and probate the codicils." Id. at 60 n.4. The Harkins court initially noted the appellees conceded "that as a matter of substantive probate law a codicil may be probated after the will to which it relates has already been probated." Id. The court then noted neither party in the trial below attempted to prove the codicils were executed with the requisite formalities. Id. Accordingly, the court held, "Any opinion we would express regarding the admissibility of the codicils to probate would be advisory." Id.
For the same reason, any opinion we would express in the instant case regarding the admissibility of the codicil to probate would be advisory. See id. Therefore, we do not have jurisdiction to address Gomez's first five issues because the admissibility of the codicil is not an issue that is ripe for our consideration.
SERVICE OF AMENDED APPLICATION AND JOINDER OF PARTIES
In arguing his sixth issue, Gomez asserts citation was never served with regard to Philip's amended application. In his tenth issue, Gomez contends the probate court erred in admitting the will to probate without the joinder of the beneficiaries under the codicil as necessary parties.
With regard to Gomez's sixth issue, because Gomez had not entered an appearance in the probate proceeding, Gomez was not entitled to receive notice of or be served with Philip's amended application. In re Estate of Ross, No. 10-09-00334-CV, 2011 WL 6004326, at *1 (Tex. App.—Waco Nov. 30, 2011, no pet.) (mem. op.); In re Estate of Wilson, 252 S.W.3d 708, 711-12 (Tex. App.—Texarkana 2008, no pet.). Furthermore, no provision in the Texas Estates Code requires the joinder of beneficiaries to a probate proceeding seeking to admit a will to probate or requires any notice other than the service of citation by the posting of the initial application for probate. See TEX. ESTATES CODE ANN. § 258.001 (West 2014) (providing for clerk to issue citation by posting notice when an application for probate of a written will is filed in the probate court); see also Wojcik v. Wesolick, 97 S.W.3d 335, 338 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ("Under the unambiguous language of section 33(a) of the Probate Code [now codified as section 51.001 of the Texas Estates Code], it is not necessary to join any person as a party or give notice of probate proceedings unless the Probate Code expressly so provides."); Soto v. Ledezma, 529 S.W.2d 847, 850 (Tex. App.—Corpus Christi 1975, no writ) (noting probate proceedings "are in rem [in nature] and personal notice is not necessary" and when a "purported will has not been admitted to probate but is simply offered for probate, [the beneficiaries] named in the purported will are not interested parties contemplated by Rule 39" which governs joinder). Gomez's sixth and tenth issues are overruled.
CLAIMS AGAINST EXECUTOR
In his seventh through ninth issues, Gomez contends the executor breached various duties owed to the beneficiaries or devisees under the codicil. The face of the record does not, however, reflect that those claims were presented to or ruled on by the probate court in admitting the will to probate. Accordingly, they cannot be addressed in this appeal. See TEX. R. APP. P. 30 (requiring error to be apparent on the face of the record in a restricted appeal).
CONCLUSION
The probate court's order is affirmed.
Rebeca C. Martinez, Justice