Roy v. McMaster (Tex.App.- Houston [1st Dist.] Sep. 17, 2009)(opinion on rehearing by Alcala)
(wills were not contractual in nature, noncompliance with Probate Code)
We sustain Ray's third issue. Having determined the wills are not contractual wills
due to their failure to comply with the Probate Code, it is necessary to reverse the
summary judgment that determined the wills were contractual wills. We need not,
therefore, address Ray's alternative arguments in his first and second issues that
assert the wills fail to meet the common law requirements for contractual wills.
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Elsa Alcala    
Before Judge Wilson, Justices Alcala and Hanks  
01-08-00214-CV  Mary Rochene Ray v. Ronald Lee McMaster  
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: Hon. William McCulloch

OPINION ON REHEARING

Appellee, Ronald Lee McMaster, has filed a motion for rehearing and for en banc reconsideration
of our opinion issued on June 18, 2009. We withdraw our opinion and judgment of June 18, 2009
and substitute this opinion and judgment in their place. Because we issue a new opinion in
connection with the denial of rehearing, McMaster's motion for en banc reconsideration of our prior
opinion is moot. Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex.
App.--Houston [1st Dist.] 2006, pet. denied).

Appellant, Mary Rochene Ray, appeals from the trial court's summary judgment in favor of
McMaster. The trial court determined that, as a matter of law, the 1992 wills of Ernest and Velma
Alley were contractual and that McMaster was the beneficiary. In three issues, Ray contends the
trial court erred by determining the wills were contractual wills. Ray asserts the wills fail to meet the
requirements of the Probate Code in that they do not describe the material provisions of the
contract. Alternatively, Ray claims the wills fail to meet the two common law requirements for
contractual wills in that the wills grant a fee simple estate and do not provide for a plan of
distribution that treats the estates as one estate. We conclude the wills are not contractual wills
because they fail to meet the requirements of the Probate Code. Therefore, after Velma's death,
Ernest could properly bequeath his property to Ray instead of McMaster. We reverse and render
judgment in favor of Ray.

Background

Ernest and Velma Alley, a married couple with no children, executed separate wills in 1992.
Ernest's 1992 will provides,

1. General Gift. I devise and bequeath all of my property, both real and personalty, as follows:

(A) One Hundred percent (100%) to my spouse, VELMA FRANCES ALLEY, . . . if my spouse
survives me;

(B) If my spouse predeceases me, then equally to "my nephew" who survives me, per stirpes. At
present, for purposes of this WILL, my nephew is:

(1) RONALD LEE MC MASTER . . . .

2. General Gift. If none of the above noted beneficiaries survive me, then all of my residuary estate
shall pass to my heirs.

. . . .

8. Contract With Spouse. I hereby declare that I have an oral and/or written agreement with my
spouse as to the disposition which may be made of my property, any property taken under this Will
or my spouse's property upon the death of either of us. We have identical, or legally similar Wills,
intending thereby to be contractually bound.

Velma's will contains identical provisions except she names Ernest as her spouse in paragraph
1(A). After she died in October 1994, Velma's will was probated. Ernest took her property under
the terms of her will.

Ernest executed a new will in 1999, revoking his 1992 will. The 1999 will devised Ernest's estate to
Ray, Velma's niece. After Ernest died in 2001, Ray applied for probate of Ernest's 1999 will. Ray
was named executor of Ernest's estate. McMaster filed this suit contending that, by making the
1999 will, Ernest breached the contract he had with Velma because the 1992 will constituted a
contract between Ernest and Velma to bequeath all their property to McMaster. McMaster sought to
set aside the order probating Ernest's 1999 will and to impose a constructive trust in his favor on
Ernest's estate.

Ray filed a motion for summary judgment, asserting that, as a matter of law, the 1992 wills were not
contractual and seeking a final summary judgment in her favor. The trial court denied Ray's motion.
Almost two years later, McMaster filed a motion for partial summary judgment, claiming that the
1992 wills were contractual as a matter of law. Ray filed a response. The trial court granted
McMaster's motion for summary judgment and severed that portion of the case dealing solely with
whether the 1992 wills were contractual wills. Ray appealed.

Standard of Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). Summary judgment is proper only when a movant establishes that there is no genuine
issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P.
166a(c). In reviewing a summary judgment, we must indulge every reasonable inference in favor of
the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in
favor of the nonmovant. Valence Operating Co., 164 S.W.3d at 661.

When both sides move for summary judgment and the trial court grants one motion and denies the
other, we review the summary judgment evidence presented by both sides and determine all
questions presented. Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Cigna Ins. Co. v.
Rubalcada, 960 S.W.2d 408, 411-12 (Tex. App.--Houston [1st Dist.] 1998, no pet.). We render
such judgment as the trial court should have rendered. Agan, 940 S.W.2d at 81; Rubalcada, 960
S.W.2d at 412.

Contractual Wills

Challenging the trial court's determination that the wills were contractual wills, Ray claims the wills
do not meet the requirements of the Probate Code.

A. The Probate Code

Section 59A of the Probate Code, entitled "Contracts Concerning Succession," provides,

(a) A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into
on or after September 1, 1979, can be established only by:

(1) provisions of a written agreement that is binding and enforceable; or

(2) provisions of a will stating that a contract does exist and stating the material provisions of the
contract.

(b) The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the
existence of a contract.

Tex. Prob. Code Ann. § 59A (Vernon Supp. 2008).

The dispute here concerns only the second alternative in section 59A(a)(2): whether there is a
provision in the will that states the material provisions of the contract. See id. § 59A(a)(2). Although
the statute does not define "material provisions," in the context of contracts, courts have said, for
example, that specific performance of a contract is not possible if it "leaves material provisions to
be agreed to later." Condovest Corp. v. John St. Builders, Inc., 662 S.W.2d 138, 140 (Tex.
App.--Austin 1983, no writ). That is, the contract "must be reasonably certain." Id. In the context of
contractual wills, in determining whether the provisions of the will state the material terms of the
contract, courts have examined the wills for a number of different factors, including: (1) a statement
about the consideration for making the agreement, (2) a statement that the agreement cannot be
changed or varied without the consent in writing of each person making the will, (3) a reference to
section 59A of the Probate Code, and (4) a specific description of what the contract requires in the
event of the death of the first person making the contractual wills. See Estate of Hearn v. Hearn,
101 S.W.3d 657, 660-61 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (holding language met
requirements of Probate Code because will referred to section 59A and stated specifically what
was required in event of first person's death); (1) Coffman v. Woods, 696 S.W.2d 386, 387 (Tex.
App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (holding language met requirements of Probate
Code because will had statement about consideration for making agreement and expressly stated
that agreement could not be changed or varied without consent in writing of each person making
will). (2) These factors are illustrative rather than specific, mandatory requirements.

B. Analysis

In her third issue, Ray contends the trial court erred by granting summary judgment for McMaster
because the 1992 wills do not state the material provisions of the contract, as required by the
Probate Code. McMaster responds, without supporting authority, that paragraphs 1 and 8 are the
material provisions of the contract and therefore the statutory requirements are met.

The wills at issue here state,

I hereby declare that I have an oral and/or written agreement with my spouse as to the disposition
which may be made of my property, any property taken under this Will or my spouse's property
upon the death of either of us. We have identical, or legally similar Wills, intending thereby to be
contractually bound.

The language in the wills fails to expressly recite the consideration exchanged for the contract or
state the wills could not be changed or revoked without mutual consent. See Coffman, 696 S.W.2d
at 387. The language in the wills fails to expressly state the wills are contractual wills under section
59A of the Probate Code. See Hearn, 101 S.W.3d at 660.

In considering what the contract requires in the event of the first person's death, we note that the
wills state that in the event of the first person's death, the surviving spouse is to get "one hundred
percent" of the deceased spouse's property. See id. Here, Velma died leaving all her estate to
Ernest without any limitations or conditions. Ernest, therefore, took possession of Velma's entire
estate for him to dispose of as he wished. McMaster, however, contends Velma and Ernest agreed
that upon both of their deaths, they would leave all their property to him. The wills, however, do not
say this. Velma's will states that if Ernest predeceased her, then McMaster would take Velma's
property. Specifically, paragraph1(B) states, "If my spouse predeceases me . . . ." (Emphasis
added). But Ernest did not predecease Velma, so this condition for the transfer of the property
never occurred. The only condition that occurred under this will was that Velma died, leaving all her
property, without condition or limitation, to Ernest for him to dispose of without restriction.

McMaster contends "a will should be read as a whole to determine whether it was executed by the
parties to carry out a planned disposition of the joint estate of the survivor." McMaster cites a
number of cases to support this proposition. However, the wills at issue in the cited cases contain
express language making it clear a joint disposition was intended. For example, in Murphy v.
Slaton, the will provided,

It is our will and desire that the survivor of us . . . shall, with the rights and authority below given, have
all the estate of every description, real, personal or mixed, which either or both of us may own at our
death, to be used, enjoyed, occupied and conveyed by such survivor for and during his or her life
time, as the case may be, and that upon the death of such survivor any of such estate then
remaining shall be divided among the persons following and in the following manner . . . .

273 S.W.2d 588, 590 (Tex. 1954) (emphasis added). The will in Novak v. Stevens had similar
language providing for the surviving spouse to have full use of the estate but specifically providing
for a devise of the remaining estate "upon the death of such survivor." 596 S.W.2d 848, 851 (Tex.
1980); see also Dougherty v. Humphrey, 424 S.W.2d 617, 619 (Tex. 1968) (devising estate to
surviving spouse and devising all property remaining "upon the death of such survivor" to another
beneficiary); Harrell v. Hickman, 215 S.W.2d 876, 877 (Tex. 1948) (granting estate to surviving
spouse and providing devise of "the remainder of our property" "[a]fter the death of both of us").
The language in these wills does not indicate an intent to dispose of both estates as one in
furtherance of a contractual agreement.

Although the wills show the spouses have an agreement to be contractually bound, that reference is
insufficient under section 59A(a)(2) because the will must state more than the fact that a contract
exists; it must state the material provisions of the contract. See Tex. Prob. Code Ann. § 59A(a)(2).
We hold the 1992 wills do not meet the requirements of the Probate Code providing that a
contractual will "can be established only by . . . stating the material provisions of the contract," in
addition to stating that a contract exists. See id.

We sustain Ray's third issue. Having determined the wills are not contractual wills due to their
failure to comply with the Probate Code, it is necessary to reverse the summary judgment that
determined the wills were contractual wills. We need not, therefore, address Ray's alternative
arguments in his first and second issues that assert the wills fail to meet the common law
requirements for contractual wills. (3)

Conclusion

We reverse the judgment of the trial court determining that the 1992 wills of Ernest and Velma Alley
were contractual as a matter of law and render judgment that the 1992 wills were not contractual as
a matter of law.

Elsa Alcala

Justice

Panel consists of Justices Alcala, Hanks and Wilson. (4)

1. In relevant part, the will in Estate of Hearn v. Hearn states,

In paragraph D-5 of the Trust Agreement, my husband [and in the case of Vernon's will, "my wife"]
and I have contracted that we each will execute and maintain in force a will which directs our
respective executors to make a marital deduction election under certain circumstances. In
accordance with such agreement, and to evidence and perfect the same in accordance with
Section 59A of the Texas Probate Code, I hereby direct that if I am the "first deceased trustor"
within the meaning of the Trust Agreement, my executor shall elect in full Section 2056(b)(7) of the
Internal Revenue Code to have all property passing to the Marital Trust established under Section
D of the Trust Agreement treated as qualified terminable interest property for federal estate tax
marital deduction purposes.
101 S.W.3d 657, 660 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (emphasis added).

2. In relevant part, the will in Coffman v. Woods states,
So that no contention may arise concerning the same, when we or either of us be dead, we do
hereby each mutually in consideration of the other making this will, and of the provisions made
herein in each other's behalf, make this our last will and testament and agree that the same cannot
be changed or varied by either without the consent in writing of the other.
696 S.W.2d 386, 387 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (emphasis added).

3. We note that in McMaster's motion for rehearing and en banc reconsideration of our June 18,
2009 opinion, McMaster contends that the common law no longer applies. We do not reach that
argument.

4. The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, participating by
assignment.