Opinion
03-22-00718-CV
10-12-2023
Valerie Wilson, Appellant v. Susan Franks, Appellee
FROM THE COUNTY COURT OF LAMPASAS COUNTY NO. 7277, THE HONORABLE RANDALL J. HOYER, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Theofanis
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
After Robert Franks (Decedent) died, his cousin Susan Franks (Franks) asked the probate court to declare her and another cousin to be Decedent's heirs. Valerie Wilson, claiming a long-term, live-in relationship with Decedent, objected and applied for the court to probate a document that she alleges is Decedent's holographic will. Franks objected to Wilson's application. After a hearing, the trial court denied Wilson's application, stating that the purported will did not meet the requirements for a valid will. On appeal, Wilson contends that the trial court's finding was erroneous. We will affirm the judgment.
BACKGROUND
Wilson attached to her application for probate the document she contends is Decedent's will. The handwritten document states in its entirety:
(Image Omitted)
We read the document as stating: "If I Robert franks is found dead Alll I have Goes too to Valarie Wilsooon." The document does not contain a line of text expressly identified as a "signature" line.
Before the hearing, Wilson filed a bench brief arguing that the document is a valid holographic will. She attached as an exhibit a Permanency Conference Plan in a separate Child Protective Services proceeding involving her grandchild that listed Decedent as "step grandfather" of the child intended to show Decedent's representation of his relationship with Wilson. The section of the Plan listing Decedent had columns for the printed names of conference participants, the relationship of the participants to the child, and the participants' signatures. Decedent's row was filled out as follows:
(Image Omitted)
The court held a hearing on the application and objection. In its Order Granting Susan Franks's Objection, the trial court wrote:
On this day the Court heard and considered Objection to Application for Independent Administration and Application to Probate a Holographic Will and for Issuance of Letters Testamentary filed by Valerie Wilson. The Court, after reviewing the pleadings, responses, and the arguments of counsel, and the testimony presented, finds the Application to Probate a Holographic Will and for Issuance of Letters Testamentary should be DENIED.
The Court finds that the writing proffered in Valerie Wilson's Application to Probate Holographic Will and for Issuance of Letters Testamentary does not meet the requirements for a valid will under the Texas Estates Code.
Though the Order states that the trial court considered arguments of counsel and testimony presented, the appellate record does not contain a reporter's record showing what testimony was presented or excluded, what arguments or objections were made, or which exhibits were offered or admitted at the hearing. The record does not contain separate findings of fact and conclusions of law or any request for them.
Wilson filed a motion for new trial with affidavits from her attorney, herself, and potential witnesses Sarah Freeman and Richard Salinas. Wilson's attorney averred that she informed the court at the hearing that Freeman and Salinas were present and intended to testify that, based on their experience with Decedent, they believed that the will was in Decedent's handwriting and signed by him. Wilson's attorney averred that the court determined that, because the writing did not meet the statutory requirements for a will, the court did not need testimony from Freeman or Salinas and would not let her call those witnesses. The other affiants concurred with her description of their intended testimony and the court's determination of why it did not allow Freeman or Salinas to testify. The affidavits are silent as to whether Wilson testified; Franks asserts on appeal without contradiction that Wilson testified. The motion for new trial appears to have been overruled by operation of law.
DISCUSSION
Wilson contends that the trial court's conclusion that the document offered for probate as a holographic will did not meet the requirements of the Estates Code is incorrect. The record does not support Wilson's contention.
All wills must be signed by the testator or by another person on the testator's behalf, though a will written wholly in the testator's handwriting (a holographic will) need not be attested by subscribing witnesses. See Te x . E s t . Code §§ 251.051-.052. The signature may be informal and its location is of secondary importance if the maker intended the written name or mark to constitute a signature expressing approval of the instrument as the maker's will. Id. § 251.051(2)(A); Jones v. Jones, 649 S.W.3d 577, 584-85 (Tex. App.-Houston [1st Dist.] 2022, no pet.). Courts have probated the wills of individuals whose names were handwritten only near the beginning of the document with no signature at the bottom of the document because the courts considered the writing of the name in that introductory passage to be the decedent's signature. Burton v. Bell, 380 S.W.2d 561, 568 (Tex. 1964); Lawson v. Dawson's Estate, 53 S.W. 64, 65 (Tex. App.-Dallas 1899, writ denied). While courts are lenient on location and form of signature, the maker must intend that his name or mark constitute a signature, i.e., that by the signature the maker expresses approval of the instrument as his will. In re Estate of Standefer, 530 S.W.3d 160, 166 (Tex. App.-Eastland 2015, no pet.).
A will must be executed with testamentary intent. Hinson v. Hinson, 280 S.W.2d 731, 733 (Te x . 1955). A c o u r t 's first duty in a proceeding to probate a will or codicil is to determine whether it shows testamentary intent. See Langehennig v. Hohmann, 163 S.W.2d 402, 405 (Te x . 1942). The intent of the testator must be ascertained from the language used within the four corners of the instrument offered for probate. Shriner's Hosp. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). Testamentary intent depends on the testator's intention to create an irrevocable disposition of the testator's property to take effect after the testator's death. Hinson, 280 S.W.2d at 733. The introduced writing must contain an explicit statement declaring that the writings are wills or codicils or that the property division will take place only after the testator's death. See In re Estate of Schiwetz, 102 S.W.3d 355, 364 (Tex. App.-Corpus Christi-Edinburg 2003, pet. denied). Construction of a testamentary instrument is a question of law where there is no ambiguity in the instrument. See Hancock v. Krause, 757 S.W.2d 117, 119 (Tex. App.-Houston [1st Dist.] 1988, no writ).
The Order states that the trial court considered "the testimony presented," but we are unable to review any testimony because there is no reporter's record. See Tex. R. App. P. 34.2, .6. A reporter's record is required to preserve evidentiary complaints for appellate review when evidence is introduced in open court. Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 150 (Tex. 2015). When, as here, the proceeding's nature, the trial court's order, and the party's briefs show that an evidentiary hearing took place in open court, then a complaining party must present a record of that hearing to establish harmful error. Id. In the absence of a reporter's record for an evidentiary hearing, we must indulge every presumption in favor of the trial court's findings and judgment. Bryant v. United Shortline Inc. Assurance Servs., 972 S.W.2d 26, 31 (Tex. 1998); Anderson v. Wynne, 672 S.W.3d 498, 502 (Tex. App.-Houston [14th Dist.] 2023, no pet.); cf. In re Tyler, 408 S.W.3d 491, 494 (Tex. App.-El Paso 2013, no pet.) (in a probate case, applying similar presumption for missing portions of an incomplete record). W e will review the documents on file when the hearing occurred.
While the document offered by Wilson contained Decedent's handwritten name and states that after Decedent's death all he has goes to "Valarie Wilsooon," the record does not support reversing the Order. In the first sentence, "franks" is printed without a capital "F," which is unlike the signature contained in the Permanency Conference Plan wherein "Robert Franks" was signed in cursive and the "F" was capitalized when "Step Grand Father" was hand-printed. We do not have a record showing who testified, what they testified, or how proposed witnesses were presented or excluded, though we must presume that whatever testimony was presented favors the judgment. See Vernco, 460 S.W.3d at 150. The record presented does not show that the trial court erred by holding that the document did not satisfy the requirements of a holographic will.
The affidavits attached to the motion for new trial do not serve as an offer of proof because the record does not show that their content was offered at the merits hearing nor does the record show that the evidence was offered before the court made its Order. See In re Estate of Miller, 243 S.W.3d 831, 838 (Tex. App.-Dallas 2008, no pet.); see also Tex. R. Evid. 103. Simply filing the affidavits with the trial court after the hearing and Order also did not suffice as a formal bill of exception. Miller, 243 S.W.3d at 837-38; see Tex. R. App. P. 33.2 (setting forth procedure for filing a formal bill of exceptions). Further, even if the trial court at any point considered the attachments to the motion for new trial, they do not overcome the evidence from the hearing and the evidence that we must presume supported the judgment. See Bryant, 972 S.W.2d at 31; In re Tyler, 408 S.W.3d at 494.
CONCLUSION
On the record presented, we cannot conclude that the trial court erred by determining that the document offered for probate as a holographic will did not meet the requirements of the Estate Code. We overrule Wilson's issue on appeal and affirm the judgment.
Affirmed.