Ray v. McFarland, 97 S.W.3d 728 (Tex. App.—Fort Worth 2003, no pet.).
Beneficiary probated Will Two. Contestant attempted to probate Will
One alleging that Will Two was invalid because of lack of capacity or
undue influence. The jury determined that Testatrix had capacity and was
not unduly influenced. In addition, the jury determined that
Contestant’s attempt to probate Will One was not done in good faith and
with just cause. Consequently, Contestant would not be entitled to
attorney’s fees under Probate Code § 243. The court, however, granted
Contestant’s request for a judgment notwithstanding the verdict finding
that Contestant did act in good faith and with just cause. Accordingly,
the court permitted Contestant to recover attorney’s fees from the
estate. Beneficiary appealed.
The appellate court reversed. The court reviewed the evidence and found
that it was sufficient to support the jury’s finding that Contestant’s
actions were not in good faith. For example, Contestant had
inappropriately taken Testatrix's money and other property by abusing a
power of attorney Testatrix had given Contestant. Accordingly, the trial
court erred when it granted a judgment n.o.v.
Moral: A contestant will have a difficult time setting aside a jury
finding that the contest was not brought in good faith and with just
cause.