In re Estate of Cornes, 175 S.W.3d 491 (Tex. App.—Beaumont 2005, no pet.).
The lower court determined that a holographic will did not meet the
requirements of a valid will but failed to specify the exact reason.
[Note: Another part of the lower court’s opinion found that will was not
in Testatrix’s handwriting but that holding was overturned on appeal.]
The appellate court conducted a review of the requirements of a valid
will focusing its attention on the “sound mind” requirement of Probate
Code § 57. The court explained that Proponent had the burden of proving
testamentary capacity and that to overturn the lower court’s finding,
Proponent must establish that Testatrix had capacity as a matter of law.
After reviewing the evidence, the court determined that there was
insufficient evidence of her capacity as of the date of will execution
and thus the trial court’s finding was upheld. The court pointed out
that although witnesses were available who could have testified as to
Testatrix’s capacity around the time of will execution, they had not
done so.
Note: The court’s holding had the effect of causing Testatrix’s estate
to pass by intestacy because it is coupled with a holding that an
earlier will was not subject to probate because the proponents were in
default in waiting more than four years.
Moral: A proponent of a will must make certain to put forward sufficient
evidence that a testator had testamentary capacity.
The lower court rejected an attempt to probate Testatrix’s
holographic will on various grounds including that the will was not in
Testatrix’s handwriting. The appellate court held that the lower court’s
rejection on this ground was against the greater weight and
preponderance of the evidence. The court examined the evidence and found
that it was clear that the handwriting of Testatrix was proved by two
witnesses as required by Probate Code § 84(b). The testimony of only one
person cast doubt that the handwriting was not that of Testatrix and
even that person admitted giving testimony in an earlier proceeding that
the will was in her handwriting. In addition, there was no proof that
this person was familiar with Testatrix’s handwriting. [Note:
Nonetheless, the court held that the will was invalid because the
proponent failed to prove testamentary capacity.]
Moral: To rebut the claim that a will is holographic, a contestant
should find someone familiar with the testator’s handwriting who can
consistently testify as to that knowledge and that the will is not in
the testator’s handwriting.
Proponents filed a will for probate after four years had elapsed from
the date of Testator’s death. Service of process to each heir whose
address was ascertainable with reasonable diligence was not given before
the probate of the will. Because the lack of notice violated Probate
Code § 128B, the appellate court held that the county judge erred in
probating the will and that the district court judge erred in failing to
grant a bill of review under Probate Code § 31.
However, because Contestant was given a full opportunity to try all
issues regarding the late probated will as well as whether an alleged
holographic will should be probated instead, the court held that “any
error committed by the county court’s failure to issue citation * * *
was rendered harmless.” In re Estate of Cornes at 495.
Moral: A proponent of a will being probate more than four years after
the testator’s death must be certain to give proper notice to the heirs
in compliance with Probate Code § 128B before probating the will.
Proponents filed a will for probate after four years had elapsed from
the date of Testator’s death. Proponents explained that they were “not
in default” in failing to present the will within the four year period
under Probate Code § 73(a) because they delayed probating their mother’s
will “out of respect” for their step-father. They feared that their
step-father would be emotionally hurt that their mother included an
express provision in the will which provided that she “intentionally
made no provision in this Will for my husband * * * and I direct that he
shall take none of my property either under this Will or by the laws of
intestacy.” Id. at 495. The lower court admitted the will to probate.
The appellate court determined that Proponents’ excuse was insufficient
to justify a late probate. The court explained, “we have found no
opinion [that] has recognized respect for potential heirs as an excuse
for the devisees’ delay in presenting a will for probate.” Id. at 495.
Moral: A proponent of a late probated will needs to show that the delay
was not due to the absence of reasonable diligence.