law-will-contest | testamentary-capacity | self-proving will | burden to establish testator had capacity
CONSTRUCTION OF A WILL
The proper standard in construing a will is to focus on the testator’s intent. See San Antonio Area
Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). The testator’s intent is ascertained by looking at the
language found within the four corners of the will. Id. In other words, we look for the testator’s intent as
revealed in the language of the whole will. Welch v. Straach, 531 S.W.2d 319, 321 (Tex. 1975);
Cooley v. Williams, 31 S.W.3d 810, 812 (Tex. App.—Houston [1st Dist.] 2000, no pet.) The question
is not what the testator intended to write, but the meaning of the words he actually used. Lang, 35 S.W.
3d at 639. “If possible, all parts of the will must be harmonized, and every sentence, clause, and word
must be considered in ascertaining the testator’s intent.” In re Estate of Florence, 307 S.W.3d 887,
893 (Tex. App.—Fort Worth 2010, no pet.). We presume that the testator placed nothing superfluous
or meaningless in his will and that he intended every word to play a part in the disposition of his
property. Cooley, 31 S.W.3d at 812 (citing Marlin v. Kelly, 678 S.W.2d 582, 587 (Tex. App.—Houston
[14th Dist.] 1984), aff’d, 714 S.W.2d 303 (Tex. 1986)).
Dace v. Dace (Tex.App.- Houston [1st Dist.] July 31, 2008)(Higley)
(dispute over estate, breach of contract, deed, undue influence)
legally insufficient evidence supports the jury’s finding that Harry entered into a written agreement with his
parents to purchase the business
Example of Jury charge on testamentary capacity | Burden to establish testamentary
capacity | jury finding of lack of capacity | deference to fact finding involving credibility
determinations
Marvin’s 2001 Will
In his fifth issue, Harry contends that the trial court erred when it rendered judgment that the October 17, 2001
will signed by Marvin was not his last will and testament.
In the charge, the jury was instructed that it should answer “no” to the question asking whether the October 17,
2001 will was Marvin’s last will and testament if it found that Marvin did not have testamentary capacity at the
time. In this regard, the jury was instructed,
Testamentary capacity means sufficient mental ability, at the time of will execution, to understand the business
in which the testator is engaged, the effect of his act in making the will, and the nature and extent of his
property; the testator must also know his next of kin and the natural objects of his bounty, and have sufficient
memory to assimilate the elements of the business to be transacted, to hold those elements long enough to
perceive their relation to each other, and to form a reasonable judgment as to them.
See Lowery v. Saunders, 666 S.W.2d 226, 232 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.) (providing
similar definition).
In support of this issue, Harry asserts that the 2001 will was “self-proving” and thus valid. However, as the
proponent of the 2001 will, Harry had the burden to prove that his father had testamentary capacity on October
17, 2001 when he executed the new will. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). The fact
that a will is self-proving does not relieve the will’s proponent of the burden to establish testamentary capacity of
the testator. Id.
Harry contends that “[t]here is no probative evidence that Marvin was incompetent at the time he signed the
will.” As mentioned, it was Harry’s burden, as proponent of the 2001 will, to show that Marvin had testamentary
capacity. Because Harry had the burden at trial to show that Marvin had testamentary capacity, we reject Harry’
s contention that “no evidence” supports the jury’s finding regarding the 2001 will;
Tommy was not obliged to prove that Marvin did not have testamentary capacity. See Yap v. ANR Freight Sys.,
789 S.W.2d 424, 425 (Tex. App.—Houston [1st Dist.] 1990, no writ).
When a party challenges the legal sufficiency of the evidence on an issue on which he had the burden of proof
at trial, he must demonstrate on appeal that the evidence conclusively establishes all vital facts in support of the
issue as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil
Co., 767 S.W.2d 686, 690 (Tex. 1989). In determining whether legally sufficient evidence supports the finding
under review, we must consider evidence favorable to the finding if a reasonable fact finder could consider it,
and disregard evidence contrary to the finding unless a reasonable fact finder could not disregard it. Keller, 168
S.W.3d at 827.
Here, after considering the evidence supporting the finding in the context of the record as a whole, we conclude
that Harry has not demonstrated on appeal that the evidence conclusively establishes that Marvin had
testamentary capacity as a matter of law.
Although Harry points to testimony arguably supporting a finding that Marvin had testamentary capacity, other
witnesses, including Tommy, Marvin’s granddaughter, a court-appointed investigator, and Marvin’s court-
appointed guardian, provided testimony weighing against such a finding. Given the record, the jury was entitled
to believe the witnesses’ testimony weighing against an implied finding of testamentary capacity and to
disbelieve the testimony cited by Harry.
We defer to the jury’s determination in this case regarding the credibility of the witnesses, the weight to be given
the testimony, and the resolution of the evidentiary conflicts. See id. at 819, 822.
We hold that the evidence was legally sufficient to support the determination that the October 17, 2001 will
signed by Marvin was not his last will and testament.
We overrule Harry’s fifth issue.