Opinion
No. 04-05-00646-CV
Delivered and Filed: June 7, 2006.
Appeal from the 156th Judicial District Court, McMullen County, Texas, Trial Court No. M-04-0004-PR-B, Honorable Janna K. Whatley, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Linda Birmingham-Queen, Roger Whitmire, and Terry Whitmire contest the probate of Woodrow A. Whitmire's last will on the grounds that he lacked testamentary capacity and was subject to undue influence when he executed the will. We overrule these contentions and affirm the trial court's judgment.
Background
Woodrow A. Whitmire died on October 24, 2003 at the age of 87. Bessie Mae Thomas Whitmire ("Whitmire"), Woodrow's wife, filed an application to probate Woodrow's last will, which was executed by Woodrow on January 9, 2001. Bessie and her sons are the primary beneficiaries of the 2001 will. Linda Birmingham-Queen, Roger Whitmire, and Terry Whitmire (collectively the "Children"), Woodrow's surviving children from a previous marriage, opposed Bessie's application to probate the 2001 will, claiming Woodrow lacked testamentary capacity and was subject to the undue influence of Bessie when he executed the will. The Children also filed a counter application to probate one of Woodrow's earlier wills, which was executed by Woodrow on July 27, 2000. The Children are the principal beneficiaries under the 2000 will.
Bessie subsequently filed a traditional motion for summary judgment asserting that there was no material issue of fact on the issue of testamentary capacity and a no-evidence motion for summary judgment with respect to the issue of undue influence. The Children filed responses to Bessie's motions and submitted the affidavits of Linda Birmingham-Queen and Paul M. Koonce in support of their responses. The trial court, however, sustained Bessie's objections to the Children's summary judgment evidence and granted both of Bessie's motions for summary judgment.
The Children appeal the trial court's decision to grant Bessie's motions for summary judgment. On appeal, the Children claim the trial court: (1) should have afforded them an opportunity to amend their summary judgment evidence after the court sustained Bessie's objections to their evidence; (2) should have afforded them an oral hearing on Bessie's motions for summary judgment; (3) erred in granting Bessie's traditional motion for summary judgment because issues of material fact exist regarding Woodrow's testamentary capacity; and (4) erred in granting Bessie's no-evidence motion for summary judgment because they presented evidence of Bessie's undue influence on Woodrow.
Opportunity to Amend
The Children allege the trial court erred by not affording them with an opportunity to amend their summary judgment evidence after the court sustained Bessie's objections to the evidence. As support for their contention, the Children rely on Texas Rule of Civil Procedure 166a(f), which provides: "[d]efects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." Tex. R. Civ. P. 166a(f). The Children, however, have failed to preserve this issue for our review.
"When a summary judgment movant objects to summary judgment evidence proffered by the nonmovant, the burden lies upon the nonmovant to request relief under rule 166a(f), including a continuance or the opportunity to cure any formal defects in the nonmovant's summary judgment evidence." Coleman v. Woolf, 129 S.W.3d 744, 750 (Tex.App. Fort Worth 2004, no pet.). The record in this case reflects that the Children neither requested the opportunity to cure the alleged defects nor moved for a continuance. By not taking any action in the trial court to indicate that they desired the opportunity to correct the defects in their summary judgment evidence, the Children failed to preserve this issue for our review. See Flanagan v. Martin, 880 S.W.2d 863, 866 (Tex.App. Waco 1994, writ dism'd w.o.j.).
Oral Hearing
The Children also claim the trial court erred by granting Bessie's motions for summary judgment without allowing an oral hearing on the motions. There is no evidence in the record, however, that the Children objected to the submission of the motions without oral argument or requested a hearing on the motions. Because the Children failed to either object or request a hearing, the Children waived this issue for appellate review. See Tex.R.App.P. 33.1(a). In any event, even if the Children had objected or requested an oral hearing on the motions for summary judgment, the trial court was not required under the Texas Rules of Civil Procedure to conduct an oral hearing on the motions. See Martin v. Martin, Martin Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex.App. Houston [14th] 1993, writ denied).
Summary Judgment
The Children further assert the trial court erred in granting Bessie's traditional motion for summary judgment on the issue of testamentary capacity and no-evidence motion for summary judgment on the issue of undue influence because they believe the record contains evidence to support their contentions. As a preliminary matter, we note the Children attempt to rely on statements included within the "Affidavit of Linda Birmingham-Queen" and "Affidavit of Paul M. Koonce" as evidence showing a fact issue exists concerning whether Woodrow lacked testamentary capacity and was subject to undue influence at the time he executed his will. The record indicates the trial court sustained Bessie's objections to these affidavits and struck the affidavits from the Children's summary judgment responses.
The Children, however, have not presented an appellate complaint attacking the propriety of trial court's ruling concerning Bessie's objections to the affidavits. Because the Children have failed to challenge the propriety of the trial court's ruling on the affidavits offered in opposition to motions for summary judgment, we are precluded from considering these affidavits on appeal. See Inglish v. Prudential Ins. Co. of Am., 928 S.W.2d 702, 706 (Tex.App. Houston [1st] 1996, writ denied) (declining to consider as evidence affidavit offered in opposition to motion for summary judgment because appellant failed to raise an appellate complaint attacking the merits of the trial court's decision to sustain the opposing party's objections to the affidavit).
A. Testamentary Capacity
Next, we consider the Children's contention that the trial court erred in granting Bessie's traditional motion for summary judgment on the issue of testamentary capacity. A testator has "testamentary capacity" if he has possession of sufficient mental ability at the time of the execution of the will: (1) to understand the business in which the testator is engaged, the effect of making the will, and the general nature and extent of his property; (2) to know the testator's next of kin and the natural objects of his bounty; and (3) to have sufficient memory to assimilate the elements of the business to be transacted, to hold those elements long enough to perceive their obvious relation to each other, and to form a reasonable judgment as to them. In re Estate of Grimm, 180 S.W.3d 602, 605 (Tex.App. Eastland 2005, no pet.). The proponent of the will has the burden to prove the testator had testamentary capacity. In re Estates of Gomez, No. 04-05-00300-CV, 2005 WL 3115871, *3 (Tex.App. San Antonio Nov. 23, 2005, no pet.) (mem. op.).
We review a trial court's decision to grant a summary judgment de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a traditional summary judgment motion, a movant must show that no genuine issue of material fact exists and that she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life, 128 S.W.3d at 215-16. "A movant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim." Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When reviewing the trial court's ruling on a traditional motion for summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Provident Life, 128 S.W.3d at 215.
As we interpret the Children's argument concerning the trial court's ruling on Bessie's traditional motion for summary judgment, the Children assert Woodrow lacked testamentary capacity to make a valid will because he was acting under the undue influence of his wife Bessie. This argument is misplaced because undue influence has no real relation to testamentary incapacity. See Long v. Long, 133 Tex. 96, 125 S.W.2d 1034, 1036 (1939). Testamentary incapacity and undue influence are two separate and distinct grounds for avoiding a will. Id. Testamentary "incapacity implies the lack of intelligent mental power; while undue influence implies within itself the existence of a mind of sufficient mental capacity to make a will, if not hindered by the dominant or overriding influence of another in such a way as to make the instrument speak the will of the person exercising undue influence, and not that of the testator." Id. Because undue influence assumes the existence of testamentary capacity, the Children's assertion that Woodrow lacked testamentary capacity because he was acting under the undue influence of Bessie lacks merit. See id. B. Undue Influence
The Children's brief provides:
This Honorable Court should reverse the Summary Judgment in Appellee's favor on Appellee's traditional motion for summary judgment because Appellants have offered sufficient summary judgment evidence to raise genuine fact issues as to whether Decedent, on or before January 9, 2001, understood the effect of his act in making the January 9, 2001 Will, understood the general nature and extent of his property, knew his next of kin and the natural objects of his bounty and their claims upon him, understood the nature of the transaction in which he was engaged, and possessed memory sufficient to collect in his mind the elements to be transacted and to hold them long enough to perceive at least the obvious relation to each other and to be able to form a reasonable judgment as to them, all because of the existence and exertion of an influence by Appellee; the effective operation of that influence to subvert o[r] overpower Decedent's mind at the time of the execution of the January 9, 2001 [Will]; and the execution of a Will by Decedent that Decedent would not have executed but for Appellee's influence. Appellants submit that this Honorable Court should, after reversal, remand this cause for trial on the issues of Decedent's testamentary capacity and undue influence exercised on Decedent by Appellee regarding the January 9, 2001 Will of Decedent. (emphasis added).
Finally, we consider the Children's contention that the trial court erred in granting Bessie's no-evidence motion for summary judgment on the issue of undue influence. A will may be set aside for undue influence if a contestant proves: (1) the existence and exertion of an influence; (2) the effective operation of such influence so that the mind of the testator was subverted or overpowered at the time of the will's execution; and (3) the execution of a will that the testator would not have executed but for that influence. Estate of Davis v. Cook, 9 S.W.3d 288, 292-93 (Tex.App. San Antonio 1999, no pet.). The burden of proving undue influence is upon the party contesting the will execution. Id. at 293. It is necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above stated elements of undue influence. Id. Further, it cannot be said that every influence exerted by one person on the will of another is undue, for the influence is not undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence. Id.
Undue influence may be shown by direct or circumstantial evidence, but is usually established by the latter. Id. When circumstantial evidence is relied upon, the circumstances must be so strong and convincing and of such probative force as to lead a well-guarded mind to a reasonable conclusion not only that undue influence was exercised, but that it controlled the will power of the testator at the precise time the will was executed. Id. Circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. Id. This is so because a solemn testament executed under the formalities required by law by one mentally capable of executing it should not be set aside upon a bare suspicion of wrongdoing. Id.
"A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). We are therefore to review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Id. at 751. "`A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.'" Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
A no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i). "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, 118 S.W.3d at 751 (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). By contrast, "[m]ore than a scintilla of evidence exists when the evidence `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Id. (citing Merrell Dow Pharms., 953 S.W.2d at 711).
Existence Exertion of an Influence
First, we must assess whether influence was exerted or existed over Woodrow. The Children assert the record clearly establishes an influence existed and was exerted by Bessie over Woodrow. As support for their contention, the Children focus on the fact that Bessie had an unlimited opportunity to influence Woodrow before he executed his will. The Children note that Bessie was Woodrow's caretaker, was always in close contact with Woodrow, and refused to leave Woodrow alone with others. In addition, the Children allege Bessie attempted to isolate Woodrow from his family and friends. These facts, however, only illustrate that Bessie had opportunity to unduly influence Woodrow; they are not proof that she actually exerted influence over him. See Estate of Davis, 9 S.W.3d at 293 (determining contacts with testatrix, who was 98 years old at the time, lonely, isolated, and plagued with physical infirmities, merely created an opportunity to exert improper influence over testatrix); Guthrie v. Suiter, 934 S.W.2d 820, 832 (Tex.App. Houston [1st] 1996, no writ) (concluding close relationship between testatrix and executor created opportunity for executor to unduly influence testatrix).
Woodrow relied heavily upon Bessie, who did not maintain a job outside the home after she and Woodrow married.
As further support for their contention, the Children note that Bessie was actively involved in the "planning, preparation, and execution" of Woodrow's will. The Children offer Woodrow's attorneys' billing records as evidence that Bessie helped plan, prepare, and execute Woodrow's will. These billing records show the following: (1) on November 30, 2000, Woodrow's attorneys met with Woodrow and Bessie about certain revisions Woodrow requested to be made to his will; and (2) on January 3, 2001, Woodrow's attorneys met with Woodrow and Bessie and answered will questions. This evidence, however, provides very little information about the circumstances surrounding these will meetings. We cannot ascertain from the billing records whether Bessie had discussed the will and its terms with Woodrow, attempted to persuade Woodrow to dispose of his property in any particular way, or participated in the meetings with Woodrow's attorneys. The billing record evidence therefore raises nothing more than a suspicion or surmise of an exertion of undue influence by Bessie. See Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963) (noting "the circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence."). Moreover, the video of Woodrow's will execution shows that Bessie was not involved in the execution of Woodrow's will.
The video shows that Bessie was not present at the will execution.
Overpowering the Testator's Mind
We must also assess whether the Children established that an improper influence overpowered Woodrow's mind. In the instant case, the Children contend Woodrow was in a weakened mental and physical state at the time he executed his will due to injuries he sustained during a fall. Such evidence, however, is only indicative of Woodrow's susceptibility to influence; it does not establish that his mind was in fact subverted or overpowered at the time of the execution of his will. See Guthrie, 934 S.W.2d at 832 ("A testatrix's weakened physical and mental condition is only indicative of her susceptibility to influence; it is no evidence that such influence exists in fact.").
No Execution "But For" the Influence
Lastly, we must assess whether the Children established that there was an execution of a document which Woodrow would not have made but for the alleged influence. Establishment of this element is generally predicated upon an assessment of whether the testament provides for an unnatural disposition of the property. See Estate of Davis, 9 S.W.3d at 294. In this respect, only where all reasonable explanation for the devise is lacking may the trier of facts consider the disposition as evidence of disorder or lapsed mentality. Id.
The Children's evidence for this element concerns the fact that Woodrow's last will made dispositions to Bessie and her sons instead of to his own children. The video of Woodrow's will execution reveals that Woodrow made the dispositions that he did because he believed his children did not help him enough and thought Bessie, whom he was completely dependant upon, had been a "good wife." Because the record demonstrates Woodrow had a reasonable explanation for his new dispositions, the fact that Woodrow made dispositions to Bessie and her sons instead of to his own children is not evidence of undue influence in this case. We accordingly hold the Children have failed to demonstrate Woodrow's will was procured by the undue influence of Bessie.
In support of their undue influence complaint, the Children also claim Bessie had a "confidential relationship" with Woodrow and that this relationship creates a fact issue regarding Bessie's exertion of undue influence. The Children further claim a fact issue is raised by Bessie's deposition testimony indicating she deposited the proceeds from the sale of Woodrow's cattle and payments from a rental property into her personal account after Woodrow's death. The Children, however, fail to cite any authority or provide any substantive analysis to support these contentions. Consequently, the Children have waived their contentions. See In re D.S., 76 S.W.3d 512, 516-17 (Tex.App. Houston [14th] 2002, no pet.); see also Tex.R.App.P. 38.1 (h).
Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.