Brown v. Traylor, 210 S.W.3d 648 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
The jury found that Executrix acted in good faith and with just cause
in defending Testator’s will and determined the amount which would
fairly and reasonably compensate her for the necessary and reasonable
attorney’s fees. Accordingly, the trial court awarded attorney’s fees
under Probate Code § 243.
The appellate court reviewed the evidence and found that it did not
support the reasonableness or necessity of the fees. There was no expert
testimony regarding the time and labor required, the skill required to
perform the legal services, the customary fee for similar services, the
results obtained, the experience, reputation, and ability of the
attorney, and so forth. Instead, the evidence merely established what
legal services were performed and how much the Executrix’s attorney
charged for those services. Accordingly, the court determined that the
evidence was legally insufficient to support the jury’s award of
attorney’s fees.
Moral: A person seeking attorney’s fees must present expert testimony
regarding the reasonableness and necessity of the fees which addresses
relevant factors such as those detailed in Texas Disciplinary Rule of
Professional Conduct 1.04. Evidence of the fees charged and services
rendered is insufficient to support an award of attorney’s fees.
Contestant complained that the trial court improperly rejected a jury
instruction which stated that the will witnesses must know that the
document being attested is a will. The appellate court, consistent with
long-established Texas law (e.g., Davis v. Davis, 45 S.W.2d 240 (Tex.
Civ. App.—Beaumont 1931, no writ)), held that the witnesses do not need
to know they are witnessing a will. Probate Code § 59 does not require
“that the testator publish to the subscribing witnesses that the
document that they are witnessing is [the testator’s] will.” Brown at
663.
Moral: Although the witnesses do not need to know they are witnessing a
will for the will to be valid, it is nonetheless a wise practice as it
will enhance the testimony of the witnesses. In addition, the witnesses
must swear that the testator “declared to them the said instrument is
his last will and testament” as part of the self-proving affidavit under
Probate Code § 59(a).
One of the witnesses to Testator’s will was also a beneficiary making
that witness not a credible witness to establish the will. However,
there were three other witnesses who were disinterested and thus the
beneficiary status of this “unnecessary” witness was irrelevant.
Moral: A will beneficiary should not serve as an attesting witness.
Testator’s original will was unavailable for probate. The trial court
determined that the evidence was sufficient to establish the will under
Probate Code § 85 and the appellate court agreed. There was testimony
from a person who read the original will who attested that a copy of the
will which was admitted into evidence was an accurate copy. The court
also determined that the evidence adequately established the cause of
non-production and that Testator had not revoked the will.
Moral: The original will should be carefully stored so that the original
is available for probate.