In re Estate of Steed, 152 S.W.3d 797 (Tex. App. – Texarkana 2004, pet. denied).
Probate Code § 6(a) provides that venue is in the county where the
decedent resided, if the decedent had a domicile or fixed place of
residence in Texas. In this case, the decedent had several residences.
The appellate court following earlier Texas case law explained that the
Probate Code section, although perhaps inartfully written, provides that
venue is in the county of the decedent’s domicile at the time of death.
The court held that “venue is established based on the domicile of the
decedent and that the multiple residence authorization for venue * * *
does not apply to the probate venue statute.” Id. at 804. The court also
explained that a domicile determination requires that the decedent (1)
made it an actual residence and (2) intended to make it a permanent
home.
Moral: If a decedent is domiciled in Texas at the time of death, venue
is solely in the county of domicile even if the decedent maintained
residences in other Texas counties.
In re Estate of Steed, 152 S.W.3d 797 (Tex. App. – Texarkana 2004, pet. denied).
The jury determined that Testator’s will was invalid because he was
subjected to undue influence. The appellate court reversed holding that
the evidence was factually insufficient to support the jury’s finding.
The court began its analysis by stating the Rothermel v. Duncan, 369
S.W.2d 917, 922 (Tex. 1963), three prong test of undue influence, that
is, the contestant must prove the (1) existence and exertion of an
influence (2) that subverted or overpowered Testator’s mind at the time
he executed the will (3) so that Testator executed an will he would not
have executed but for the influence. The court carefully examined the
evidence, including statements that Testator made to others that he
wrote the will to pacify his wife, the primary beneficiary, to get her
off the “warpath” and curb her spending. But, when coupled with other
evidence such as that Testator was a lawyer and accomplished
businessman, his wife often lived over 500 miles away from him, Testator
wrote the will while alone, and Testator sent his wife the will in the
mail, there was insufficient evidence to support a jury finding of undue
influence.
Moral: Although difficult, it is possible to overturn on appeal a jury
finding that a testator was subject to undue influence.
In re Estate of Steed, 152 S.W.3d 797 (Tex. App. – Texarkana 2004, pet. denied).
The jury determined that Testator’s will was invalid because he had
no intent for the instrument to be his will. The appellate court
reversed holding that the jury’s finding of lack of testamentary intent
was so against the great weight and preponderance of the evidence that
it was clearly wrong and unjust.
The court studied the will itself and found that it was brimming with
testamentary intent. Testator was a lawyer who had a significant wills
practice. Testator’s holographic will was labeled as a “last will and
testament,” made a variety of gifts to his wife and family, and
appointed his wife as the independent executrix of the estate. The only
evidence negating Testator’s testamentary intent was the testimony of
individuals who simply “thought” Testator did not mean the document to
be his will. There was no evidence of any unusual or extraordinary
circumstances when Testator executed the will which cast doubt on his
intent.
Moral: A jury’s finding of lack of testamentary intent must be supported
by evidence which creates more than a mere suspicion that a testator did
not have intent to execute a will.
In re Estate of Steed, 152 S.W.3d 797 (Tex. App. – Texarkana 2004, pet. denied).
A computer file was located on Testator’s computer containing a
document labeled as the final draft of his will. No signed copy of this
will was presented to the court. The jury determined that Testator never
executed this will.
On appeal, the court reversed holding that the jury’s finding was
against the great weight and preponderance of the evidence. The court
recognized the existence of a variety of suspicious circumstances such
as the fact that Testator’s hard drives were removed by the proponents
of the alleged will after Testator died and were not recovered until
several months later. However, there was testimony from two witnesses
and a notary that Testator had executed this will although the notary’s
record book did not reflect the execution of the self-proving affidavit.
The court’s reversal, however, does not mean that this will is valid or
that the elements of proving a lost will were satisfied. Instead, the
court merely determined that the jury’s determination that Testator did
not execute the will was improper.
Moral: The notary should be certain to have the testator and witnesses
sign the notary record book to create better evidence of the will
execution. The existence of such evidence in this case could have made
it easier to find that Testator actually executed the will.
In re Estate of Steed, 152 S.W.3d 797 (Tex. App. – Texarkana 2004, pet. denied).
The probate court was presented with three wills. Two of the wills
were the subject of controversy and a third, the earliest of the wills,
was undisputed. The trial court determined that as a matter of law the
probate of this earliest will was waived. The appellate court reversed
holding that there was no support for a waiver from the record. The
parties took no action to abandon this will and because the will was
self-proved, it required no action from the jury to validate it.
Moral: To avoid assertions of waiver, proponents of a will, even one
they think may have been revoked by a later will, should be certain to
plead and obtain findings to support the will.