In re Estate of Swanson, 130 S.W.3d 144 (Tex. App.—El Paso 2003, no pet.).
Proponent obtained an order admitting Testatrix’s will to probate as
a muniment of title. Later, Contestant challenged the will asserting
that Testatrix’s signature was a forgery and that even if the signature
was valid, that Testatrix lacked testamentary capacity or was subject to
undue influence. Proponent responded by claiming that there was no
evidence to support Contestant’s claims. Contestant replied and
submitted several affidavits but did not object to the global natural of
Proponent’s no-evidence summary judgment motion. The probate court
agreed with Proponent and Contestant appealed.
The appellate court reversed. The court began by addressing a procedural
issue with regard to the impact of failing to object to a no-evidence
motion. The court rejected its earlier holdings and joined with other
appellate courts in holding that “even if the nonmovant does not object
or respond to a defective no-evidence motion, if it is conclusory,
general, or does not state the elements for which there is no evidence,
it cannot support the judgment and may be challenged for the first time
on appeal.” Swanson at 147.
The court then examined Proponent’s response and agreed with Contestant
that the motion contained only global and conclusory statements
regarding the lack of evidence of forgery, lack of capacity, and the
existence of undue influence. The court also explained that even if the
motion was adequate, Contestant presented sufficient evidence of the
forgery of Testatrix’s name to withstand a no-evidence motion. For
example, Contestant stated that she was familiar with the appearance of
Testatrix’s signature and that the signature on the will was not that of
Testatrix.
Moral: Will contestants and proponents must not only be familiar with
the substantive law of wills, but must also have a firm grasp of the
applicable procedural rules.