Cynthia Mynard v. Charles Ashley Degenhardt
Date Filed2023-12-28
Docket14-22-00773-CV
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
Affirmed and Memorandum Opinion filed December 28, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00773-CV
CYNTHIA MYNARD, Appellant
V.
CHARLES ASHLEY DEGENHARDT, Appellee
On Appeal from the County Court at Law No. 4
Williamson County, Texas
Trial Court Cause No. 20-0860-CP4
MEMORANDUM OPINION
Cynthia Mynard appeals an order admitting to probate the will of her mother,
Jacqueline Mynard (“Jackie”), and authorizing letters testamentary that named
Jackie’s grandson, Charles Ashley Degenhardt, the dependent executor of the estate.
See Tex. Est. Code § 32.001(c) (allowing appeals to the court of appeals). Cynthia
contested Charles’s application to probate the will and offered a later-dated
purported holographic codicil that she contended revived one of Jackie’s earlier
wills. In the probated will, Jackie left her estate largely to her grandson Charles and
to her daughter, Pamela Mynard, who is Charles’s mother; Cynthia and Lee Mynard,
Jackie’s two other adult children, were explicitly disinherited and left only $500
each.
Cynthia challenges the admission of the will to probate in six issues: (1) the
trial court erred by refusing to admit the later-dated purported holographic codicil
reviving an earlier formal will to probate; (2) the trial court erred by admitting the
will Charles offered to probate; (3) the trial court erred in finding the revocation
clause of the probated will revoked an earlier will; (4) the trial court erred by
excluding certain evidence Cynthia offered, which was not harmless; (5) the trial
court erred in refusing to file findings on omitted issues necessary to support its
judgment; and (6) the trial court erred in denying Cynthia’s request for attorney’s
fees.
After a thorough review of the record, we conclude that the trial court did not
abuse its discretion by admitting to probate the will Charles offered, nor did any
evidentiary errors or the failure to file amended findings result in any harm to
Cynthia. Finally, we conclude that the trial court was within its discretion to deny
Cynthia’s request for attorney’s fees. Accordingly, we affirm the trial court’s order.
Background
Jackie died on August 20, 2020 when she was 86 years old. She was survived
by two of her three adult children, Pamela and Cynthia. Her son Lee predeceased
her.
In March 2016, Jackie’s attorney, Merlin Lester, prepared a formal, self-
proved will (the “March 2016 will”). In the March 2016 will, Jackie divided her
estate equally among her three children.
2
In April 2018, Jackie executed another will (the “April 2018 will”), in which
she revoked the March 2016 will and largely split her estate between Pamela and
Charles, on the one hand, and Cynthia, on the other. Jackie disinherited Lee in this
will, leaving him only $10. Jackie signed this will in the presence of two witnesses
and a notary at her local bank. According to the will’s notary, Jackie brought the
two witnesses in with her to the bank to execute the April 2018 will. Both witnesses
verified that they were present when Jackie executed this will.
Around May of 2018, Charles and Pamela moved in with Jackie to help care
for her as her health was declining. Cynthia lived in Virginia and was unable to
move to Texas full-time to help with Jackie’s care, although she visited regularly.
On July 21, 2018, while Jackie was in the hospital being treated for
pneumonia, she executed a new will (the “July 2018 will”). Charles drafted this will
by making changes, purportedly at Jackie’s direction, to the April 2018 will. In the
July 2018 will, Jackie revoked her prior wills and explicitly disinherited both Lee
and Cynthia, except for leaving them $500 each. She divided her estate among
Pamela and Charles. Jackie read and signed the July 2018 will in the presence of
two disinterested witnesses, Curtis Marley and Michelle Tribble, and a notary, Beth
Barton.1 Barton gave the will to Jackie after it was executed, witnessed, and
notarized. However, shortly before Jackie’s death, Charles returned the July 2018
will to Barton for “safekeeping.”
Also in July 2018, Jackie contacted Lester about preparing a new will, and
Lester drafted a new will for her to sign. In this draft will, Jackie excluded Lee and
Cynthia from receiving any benefits of her estate, except a distribution of $1,000 to
each of them; she split the remainder of her estate among Charles and Pamela. Jackie
1
Barton went to the hospital’s waiting room to find the witnesses, neither of whom knew
any of the parties to the will or the notary.
3
had an August 29, 2018 appointment to sign this will, but she did not appear for the
appointment. The only signed testamentary document Lester had in his files was
Jackie’s March 2016 will.
As shown below, Jackie made the following handwritten notations on a copy
of the March 2016 will: “Addendum. 8-14-19. Lots in Zent Subdivision #’s 12, 13,
14 be given have been sold to Robert Winnon Lee, my brother — [signed] Jacqueline
Lee Mynard JLM” (the “August 2019 addendum”).
It is unclear when the “be given” language was struck through and the notation “have
been sold” was added to the addendum.
After Jackie’s death, Charles filed an application to probate the July 2018 will.
Cynthia filed a counter-application to probate a copy of the August 2019 addendum,
alleging that it was a holographic codicil that revived the March 2016 will and
revoked the July 2018 will. Cynthia contended that only the original language, not
the struck-through portion, constituted a codicil. She did not have an original of
either the August 2019 addendum or the March 2016 will.
The trial court conducted a four-day bench trial on Charles’s and Cynthia’s
competing applications for probate. After the trial, the trial court admitted the July
4
2018 will to probate, named Charles as the dependent executor of Jackie’s estate,
and issued letters testamentary. The trial court ordered that “no attorney’s fees are
being awarded to either party,” making each party responsible for their own
attorney’s fees in this will contest.
At Cynthia’s request, the trial court signed findings of fact and conclusions of
law. Pertinently, the trial court found that:
• on April 12, 2018, Jackie executed a prior will with the formalities and
solemnities and under the circumstances required by law to make it
valid;
• the April 2018 will revoked all prior wills;
• in June 2018, Jackie sent an email to Cynthia, Lee, and Lee’s wife
Mary, expressing how upset she was with them;
• the July 2018 will was executed with the formalities and solemnities
and under the circumstances required by law to make it valid;
• Jackie had sufficient mental ability to understand she was making the
July 2018 will and she was not unduly influenced;
• the July 2018 will was proved by the sworn testimony of two
disinterested witnesses, Marley and Tribble, and the notary who
witnessed the signatures of Jackie, Marley, and Tribble;
• the July 2018 will revoked all prior wills;
• the July 2018 will was not subsequently revoked;
• the August 2019 addendum was not a codicil;
• Cynthia did not produce an original of the August 2019 addendum;
• Cynthia did not produce an original of the March 2016 will;
• the March 2016 will was revoked by the April 2018 will;
• the March 2016 will was not revived by the copy of the August 2019
addendum; and
• neither Charles nor Pamela destroyed any of Jackie’s prior wills.
5
Based on its findings, the trial court concluded that Charles satisfied his required
burden of proof to establish admission of the July 2018 will to probate and that
Cynthia failed to satisfy her required burden of proof to establish admission of the
copy of the August 2019 codicil and March 2016 will to probate.
Cynthia sought additional findings of fact, but the trial court declined to issue
any. Cynthia appeals.
Analysis
A. Admission of the July 2018 Will to Probate
In her first three issues, Cynthia challenges the trial court’s admission of the
July 2018 will to probate. We begin our analysis with the applicable standards of
review.2
1. Standards of review
We generally review a trial court’s ruling on a probate application for an abuse
of discretion. Castillo v. Castillo-Wall, No. 03-21-00081-CV, 2022 WL 1434110, at *2 (Tex. App.—Austin May 6, 2022, no pet.) (mem. op.); In re Est. of Gay,309 S.W.3d 676, 679
(Tex. App.—Houston [14th Dist.] 2010, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Cire v. Cummings,134 S.W.3d 835
, 838- 39 (Tex. 2004); Gay,309 S.W.3d at 679
. A trial court also abuses its discretion if it misconstrues or misapplies the law. Gay,309 S.W.3d at 679
.
Under the abuse-of-discretion standard, legal and factual sufficiency of the
evidence are not independent grounds for asserting error, but they are relevant
2
The Supreme Court of Texas ordered the Third Court of Appeals to transfer this case to
our court. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court
of Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.
6
factors in assessing whether the trial court abused its discretion. Est. of Brown, No.
01-19-00953-CV, 2022 WL 17813757, at *6 (Tex. App.—Houston [1st Dist.] Dec. 20, 2022, pet. filed) (mem. op.); see Flowers v. Flowers,407 S.W.3d 452, 457
(Tex. App.—Houston [14th Dist.] 2013, no pet.). A trial court does not abuse its discretion when some evidence of a substantive and probative character exists to support the trial court’s decision. Flowers,407 S.W.3d at 457
.
When examining legal sufficiency, we review the entire record, considering
evidence favorable to the finding if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not. Gunn v. McCoy, 554
S.W.3d 645, 658(Tex. 2018); In re Est. of Parrimore, No. 14-14-00820-CV,2016 WL 7520293
, at *4 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op.). We indulge every reasonable inference that would support the challenged finding. Gunn,554 S.W.3d at 658
; Parrimore,2016 WL 7520293
, at *4. Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. Gunn,554 S.W.3d at 658
; Parrimore,2016 WL 7520293
, at *4. For a factual-sufficiency review, we examine the entire record and consider evidence favorable and contrary to the challenged finding. Cain v. Bain,709 S.W.2d 175, 176
(Tex. 1986) (per curiam); Parrimore,2016 WL 750293
, at *5. We may set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain,709 S.W.2d at 176
; Parrimore,2016 WL 750293
, at *5. When considering the sufficiency of the evidence, we must remain mindful that this court is not a factfinder, and the trial court is the sole judge of the witnesses’ credibility and the weight to afford their testimony. See Parrimore,2016 WL 750293
, at *4-5.
7
2. The August 2019 addendum is not a codicil
In her first issue, Cynthia asserts the trial court erred by refusing to recognize
the August 2019 addendum as a codicil. Cynthia contends that this “codicil” revived
the March 2016 will and that both should have been admitted to probate. The trial
court disagreed, finding that “the copy of a handwritten memorandum dated August
2019 is not a codicil.” We agree with the trial court.
“A codicil is a testamentary writing that is supplementary to an earlier
testamentary writing and must be executed with the formalities required in the
making of a will.” Phillips v. Copeland, No. 01-12-00492-CV, 2013 WL 1932179, at *4 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.). These formalities include, as applicable here, that the codicil must be wholly in the testator’s handwriting and signed by the testator in person. See Tex. Est. Code §§ 251.051-.052. Additionally, a codicil must make sufficient reference to the will it amends, and it must express testamentary intent. See In re Est. of Hendler,316 S.W.3d 703, 708
(Tex. App.—Dallas 2010, no pet.). Testamentary intent is the intent to create a revocable disposition of property that will take effect after death. Hinson v. Hinson,280 S.W.2d 731, 733
(Tex. 1955); In re Est. of Silverman,579 S.W.3d 732, 736
(Tex. App.—Houston [14th Dist.] 2019, no pet.); Hendler,316 S.W.3d at 708
. “The introduced writing must contain an explicit statement declaring that the writings are wills or codicils or that the property division will take place only after the testator’s death.” Wilson v. Franks, No. 03-22-00718-CV,2023 WL 6627522
, at *2 (Tex. App.—Austin Oct. 12, 2023, no pet. h.) (mem. op.). Construction of a testamentary instrument is a question of law when the instrument is not ambiguous.Id.
However, if it is unclear from the language of an instrument whether its maker created it with testamentary intent, we may consider evidence of surrounding facts and circumstances. See Hendler,316 S.W.3d at 708
.
8
Here, the August 2019 addendum stated, “Lots in Zent Subdivision #’s 12, 13,
14 be given have been sold to Robert Winnon Lee, my brother.” Cynthia contends
that Jackie’s testamentary intent is evidenced by the stricken language that the Zent
lots would be “given” to her brother. Cynthia effectively asked the trial court to
ignore that this language was stricken and replaced with “have been sold.” Cynthia
testified that the “original” language—i.e., “be given”—appeared to have been
written with a “fine ball point pen,” while the “have been sold” language appeared
to have been written “in a thicker, maybe like a medium point pen.” Although it is
true that the “have been sold” notation appears bolder than the struck through words,
there is simply no way to tell when the strike-through and substitution occurred. As
written, the August 2019 addendum expresses no testamentary intent and instead
reflects merely that some of Jackie’s property was sold to her brother.
Even if we were to credit the stricken “be given” language, nothing in the
addendum reflects that Jackie intended that the property be given to her brother upon
her death. See Hinson, 280 S.W.2d at 733-34; Wilson,2023 WL 6627522
, at *2; Silverman, 679 S.W.3d at 736; Hendler,316 S.W.3d at 708
. At most, the notations express Jackie’s intent to give this property to her brother at some point in the future.3 Cf. In re Est. of Schiwetz,102 S.W.3d 355, 363-64
(Tex. App.—Corpus
Christi 2003, pet. denied) (explaining that when writings contained no explicit
statements that they were wills or codicils or that the property division would take
place after the decedent’s death, they at most expressed an intent on the decedent’s
part to dispose of her property in the future and thus lacked the necessary
3
Lester testified that, around the time that the addendum was written, he was assisting
Jackie in selling this property to Robert. According to Lester, the real estate transactions may have
been “underway” when Jackie made the notations, although no formal contract had been drafted
and no money—so far as Lester knew—had changed hands. Because this evidence undermines
any potential testamentary intent expressed in the August 2019 addendum, it also supports the trial
court’s finding that the addendum was not a codicil.
9
testamentary intent to constitute a codicil); In re Est. of Graham, 69 S.W.3d 598,
608 (Tex. App.—Corpus Christi 2001, pet. denied) (“A document that merely
evidences an intention to dispose of the property is not a will.”).
In short, we agree with the trial court that the August 2019 addendum was not
a codicil, and we hold that the trial court did not abuse its discretion in refusing to
admit the August 2019 addendum to probate. Because we conclude that the trial
court did not err in rejecting the addendum as a codicil, we need not address
Cynthia’s arguments concerning whether the addendum revived Jackie’s earlier
March 2016 will or revoked the July 2018 will.
We overrule Cynthia’s first issue.
3. Cynthia did not establish the July 2018 will was the result of undue
influence
In issue two, Cynthia urges that the trial court erred by admitting the July 2018
will to probate. She first asserts that Charles failed to establish that Jackie did not
revoke this will, relying on her arguments concerning the August 2019 addendum
addressed above. Because we have determined that the trial court did not abuse its
discretion in determining that the August 2019 addendum was not a codicil, we do
not revisit those arguments here. Thus, we confine our discussion to Cynthia’s
arguments that the July 2018 will was the product of undue influence by Pamela and
Charles. Cynthia asserts that the trial court’s finding that Jackie was not unduly
influenced when she executed this will is based on legally and factually insufficient
evidence. We disagree.
Undue influence is a ground for setting aside a will. See Rothermel v. Duncan,
369 S.W.2d 917, 922 (Tex. 1963). A will contest based on a claim that the will was
procured by undue influence has three elements: (1) an influence existed and was
exerted; (2) the exertion of the influence subverted or overpowered the mind of the
10
testator at the time she signed the will; and (3) the testator would not have made the
will but for the influence. See In re Est. of Woods, 542 S.W.2d 845, 847(Tex. 1976); Rothermel,369 S.W.2d at 922
; In re Est. of Casas, No. 14-20-00575-CV,2022 WL 711087
, at *3 (Tex. App.—Houston [14th Dist.] Mar. 10, 2022, no pet.) (mem. op.). The burden to prove undue influence normally rests on the party challenging the instrument’s validity. Casas,2022 WL 711087
, at *3.
To satisfy the first element, the will contestant must show that an influence
existed and was exerted. Rothermel, 369 S.W.2d at 922. Relevant factors include: (1) the nature and type of relationship existing between the testator, the contestant, and the party accused of exerting such influence; (2) the opportunities for the exertion of the alleged influence; (3) the circumstances surrounding the drafting and execution of the will; (4) the existence of a fraudulent motive; and (5) whether the testator was habitually under the control of another.Id. at 923
. The exertion of influence, however, cannot be inferred from opportunity alone, such as might result from caring for the testator or seeing to her needs.Id.
There must be proof showing both that the influence existed and that it was exerted. Id.; Casas,2022 WL 711087
,
at *4.
Regarding the relationships between Jackie, Cynthia, Pamela, and Charles,
Cynthia testified that she enjoyed a loving and supportive relationship with Jackie.
Cynthia had lived in Virginia for about twenty-eight years before Jackie’s death,
although she visited Jackie once or twice a year and maintained frequent contact
through phone calls, letters, and cards. In early 2018, Jackie asked Cynthia to move
to Texas to take care of her, but Cynthia could not. Additionally, Jackie’s sister-in-
law, Penny Lee, testified that she was not aware of any friction between the two
during the last few years of Jackie’s life.
11
However, Beth Barton, the individual who notarized Jackie’s July 2018 will
and had known Jackie since 1992, testified that in 2018 Cynthia and Lee placed calls
to Jackie in an effort to pressure her to change her will. Barton’s testimony is
supported by a message that Jackie sent to Cynthia, Lee, and Lee’s wife, Mary, about
six weeks before Jackie signed the July 2018 will.4 This message, sent in June 2018,
detailed substantial conflict between Jackie and the message’s recipients, including
Cynthia, and indicated that Lee and Cynthia made unwelcome phone calls to Jackie
and her attorney inquiring about Jackie’s will and financial arrangements; it further
stated that Cynthia, Lee, and Mary were not welcome in Jackie’s home unless Jackie
invited them. The message expressed that Jackie was greatly hurt by Cynthia’s,
Lee’s, and Mary’s actions taken since Pamela and Charles moved in to help take
care of her.
Cynthia described Jackie’s relationship with Pamela as “tense” and “volatile.”
Robert Lee, Jackie’s younger brother, testified that Pamela could be confrontational
and controlling. Cynthia and Robert were both surprised when Pamela moved into
Jackie’s home. According to Penny and Robert, after Pamela and Charles moved
in, Jackie became more withdrawn, tense, and nervous, and Pamela became more
controlling of Jackie; Robert said that Jackie appeared fearful of Pamela.
That Pamela and Charles moved in with Jackie and were living with her as
her health was declining shows that they had the opportunity to exert influence on
her as to the execution of the July 2018 will. Cynthia suggests that Pamela and
Charles “carried out a plan to isolate Jackie from her other children,” pointing to
4
The trial court found that Jackie sent this message. Cynthia does not dispute that she
received this message. However, she contends that the trial court’s finding was erroneous, based
on the “context and surrounding circumstances.” The trial court, however, as the sole judge of the
witnesses’ credibility and the weight to be given their testimony, was entitled to determine whether
the context and surrounding circumstances indicated that Jackie sent the message.
12
Cynthia’s testimony that Jackie was hospitalized in April 2018 but no one told her.
Cynthia also suggests that Jackie’s June 2018 message shows that Pamela and
Charles were isolating Jackie because in the message, Jackie told Cynthia, Lee, and
Mary not to visit her without an invitation. Cynthia’s contention turns on her claim
that Pamela, not Jackie, sent the message. But her argument is contrary to the trial
court’s finding. And the message stated that Jackie asked Pamela and Charles to
move in with her so that she could “receive the constant care [she] need[s] now and
in the future, from THEM, so that [she] would not become a physical, emotional or
financial burden on [Cynthia, Lee, or Mary].” The message expressed appreciation
for Pamela and Charles and stated that they were “not using” Jackie in any way.
Cynthia presented some evidence that Pamela and Charles had the opportunity
to influence Jackie. But opportunity to exert influence is not alone sufficient to show
undue influence. See Rothermel, 369 S.W.2d at 923; Casas,2022 WL 711087
, at *5. Cynthia was required to show that Charles or Pamela actually exerted an influence over Jackie that subverted or overpowered Jackie’s mind at the time she signed the will. Rothermel,369 S.W.2d at 922
. On this element, relevant considerations include: (1) the testator’s state of mind and evidence relating to her ability to resist or susceptibility to the influence of another, such as mental or physical infirmity or incapacity, when the testament was executed; and (2) the testator’s words and acts.Id. at 923
.
Regarding whether Charles or Pamela actually exerted an influence over
Jackie, the record contains scant evidence. For example, there is no evidence that
Charles or Pamela ever asked or urged Jackie to change her will to favor them.
Instead, Cynthia’s argument that they exerted an undue influence is based on
circumstantial facts, such as that Pamela and Charles were Jackie’s caretakers, the
13
will was drafted only a few months after they moved in to help care for Jackie, and
that Charles purportedly “authored” the will.
Although Jackie’s physical health was declining, there was no evidence that,
at the time she signed the will, her mental health was in decline or that she was
mentally incapacitated in any way. Cf. Casas, 2022 WL 711087, at *5 (describing mental decline of testator). Charles described Jackie as a “headstrong” person. Similarly, Barton, a disinterested witness, testified that Jackie was a “strong lady” who “had her own way of doing things.” Indeed, Cynthia acknowledges that “Jackie’s mind was strong, but her age and health condition prevented her from taking care of herself at home any longer.” She contends that these facts left Jackie “vulnerable and susceptible to Pamela and [Charles], dependent upon them to provide for her care. . . .” But “close relations or the provision of care standing alone do not suffice to show undue influence.” Casas,2022 WL 711087
, at *4 (citing Guthrie v. Suiter,934 S.W.2d 820, 832
(Tex. App.—Houston [1st Dist.] 1996, no writ); Evans v. May,923 S.W.2d 712, 715
(Tex. App.—Houston [1st Dist.] 1996,
writ denied)).5
When, as here, the relevant witnesses are available, their testimony about the
planning and preparation of the challenged will is central to a claim of undue
influence. Yost v. Fails, 534 S.W.3d 517, 526 (Tex. App.—Houston [1st Dist.] 2017,
no pet.). Although no one testified about the planning of the July 2018 will,6 there
was ample testimony about the will’s preparation by those present when it was
5
Indeed, Cynthia would be hard-pressed to argue that Jackie was in such mental decline
by 2018 that she lacked capacity to execute the July 2018 will since Cynthia expressly argued in
her brief that “Jackie Had Testamentary Capacity” as of August 14, 2019.
6
We note, however, that Charles repeatedly testified that he and Jackie never discussed
how Jackie wanted to dispose of her estate. Cynthia does not identify any evidence that Pamela
discussed or expressed her desires as to the content of Jackie’s will, nor was Pamela present at the
will’s signing.
14
drafted and executed. First, although Cynthia contends that Charles was the “author”
of the July 2018 will, Charles testified that Jackie dictated the terms of the will to
him and he merely recorded her wishes. Barton witnessed Jackie dictating the terms
of the will to Charles and agreed that the July 2018 will reflected the terms that
Jackie requested. Second, when Barton questioned Jackie about the will’s terms,
Jackie stated that she was “very certain” about them. Barton specifically asked
Jackie if she wanted to leave Cynthia and Lee only $500 each; Jackie responded,
“Yes, this is what I want to do.”7 Third, Marley and his daughter, Tribble, testified
that Jackie did not seem to be influenced by anyone. Marley agreed that Jackie
reviewed the will before she signed it. Marley and Tribble spoke with Jackie for
about thirty minutes on the day she executed the will, and neither saw any signs of
duress. In fact, Marley described Jackie as “very relaxed and casual.” Tribble stated
that nothing about Jackie’s demeanor caused her any concern about Jackie’s mental
state, nor did anything lead her to believe that Jackie was afraid, frightened, or being
influenced by anyone when she signed the will. In sum, nothing in the testimony
offered by the witnesses present at the will’s execution supports a finding that either
Pamela—who was not present—or Charles actually exerted an undue influence over
Jackie at the time she executed the July 2018 will. See In re Est. of Kam, 484 S.W.3d
642, 653-54 (Tex. App.—El Paso 2016, pet. denied) (overturning trial court’s
finding of undue influence when there was insufficient evidence that alleged
influencer actually overwhelmed testator’s free agency).
We are mindful that undue influence may be established by circumstantial
evidence, but the circumstances must be of “a reasonably satisfactory and
convincing character” and “not be equally consistent with the absence of the exercise
7
Barton testified that Jackie told her that, between April and July 2018, Cynthia and Lee
were calling and “pressuring [Jackie] to do something different with her will.” Barton described
Jackie as “very saddened” by their actions.
15
of such influence.” Rothermel, 369 S.W.2d at 922-23. Influence is undue only if the volition of the testator is destroyed and the resulting will expresses the wishes of the one exerting the influence.Id. at 922
. Such undue influence may include force, intimidation, duress, excessive importunity, or deceit.Id.
There is no evidence in today’s case of any force, intimidation, duress, excessive importunity, or deceit by either Charles or Pamela as it relates to Jackie’s execution of the July 2018 will. If the relevant conduct is not so excessive as to actually subvert the testator’s will, it will not taint the instrument’s validity.Id.
This is so because Texas respects the legal rights of testators of sound mind to dispose of their property as they see fit; those desires should not be set aside based upon a mere surmise or suspicion of wrongdoing. Id.; Casas,2022 WL 711087
, at *4.
Cynthia relies on evidence she proffered that Jackie was fearful of Pamela and
Charles and wanted them to move out of her home. But most of this evidence arose
months after the signing of the July 2018 will, and the trial court excluded that
evidence which was not temporally connected to the will’s signing.8 Importantly,
the testimony from the three disinterested witnesses who were present at the July
2018 will’s execution describing Jackie’s demeanor, mental state, and words
evidenced that any exertion of influence by Pamela or Charles did not subvert or
overpower Jackie’s mind at the time she signed the will.9 See Rothermel, 369
S.W.2d at 923(“Where there is competent evidence of the existence and exercise of such influence, the issue as to whether it was effectually exercised necessarily turns the inquiry and directs it to the state of the testator’s mind at the time of the execution of the testament. . . .”); see also Casas,2022 WL 711087
, at *9-11 (discussing cases
8
See infra, section B, where we address Cynthia’s evidentiary complaints.
9
Cynthia proffered no evidence that Jackie was fearful of Charles around the time she
executed the July 2018 will; rather, her proffered evidence focused on Jackie’s purported fear of
Pamela. And, as noted above, Pamela was not present when Jackie signed the will.
16
involving undue influence). Because there is no evidence that the existence and
actual assertion of influence upon Jackie actually overpowered her mind or desires,
we need not analyze the evidence pertaining to the third element of undue
influence—whether Cynthia established that Jackie would not have made the
challenged will but for the influence. E.g., In re Est. of Sidransky, 420 S.W.3d 90,
95(Tex. App.—El Paso 2012, pet. denied) (“Evidence concerning one element is insufficient because each element is necessary to establish a claim of undue influence.”) (citing Rothermel,369 S.W.2d at 923
).
In sum, we conclude that a reasonable and fair-minded factfinder could find
that any exertion of Pamela’s or Charles’s influence did not subvert or overpower
Jackie’s mind at the time she signed the will. Further, such a finding is not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. The trial court’s finding that the July 2018 will was executed without undue
influence is supported by legally and factually sufficient.
We overrule Cynthia’s second issue.
4. The July 2018 will revoked the April 2018 will
In her third issue, Cynthia argues that the trial court erred by finding that the
July 2018 will revoked the April 2018 will. The July 2018 will contains an explicit
revocation clause: “I hereby revoke any and all former Wills and Codicils thereto
made by me and declare this my Last Will and Testament.” Thus, as Cynthia
acknowledges in her briefing, this issue turns on whether the July 2018 will is
invalid. See Abbott v. Foy, 662 S.W.2d 629, 631 (Tex. App.—Houston [14th Dist.]
1983, writ ref’d n.r.e.) (an invalid will cannot serve to revoke a former will). We
have determined that the trial court did not err in admitting the July 2018 will to
probate.
17
We overrule Cynthia’s third issue.
B. Exclusion of Evidence
In issue four, Cynthia contends the trial court committed harmful error by
erroneously excluding various evidence she offered.
1. Standard of review
The decision to admit or exclude evidence lies within the sound discretion of
the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234(Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. Izen v. Laine,614 S.W.3d 775
, 795 (Tex. App.—Houston [14th Dist.] 2020, pets. denied). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court.Id.
We will uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling, even if that ground was not raised in the trial court.Id.
A party seeking to reverse a judgment based on evidentiary error must prove
that the error probably resulted in rendition of an improper judgment. Id.; see Tex.
R. App. P. 44.1(a)(1). To determine whether evidentiary error probably resulted in
the rendition of an improper judgment, we review the entire record. Izen, 614
S.W.3d at 795.
2. No abuse of discretion shown
Much of Cynthia’s argument in support of this issue turns on her contention
that the August 2019 addendum was, in fact, a codicil, an argument we have rejected.
For example, Cynthia argues that Penny Lee’s testimony10 regarding events in June
10
Cynthia preserved this complaint by making an offer of proof describing the content of
Penny’s excluded testimony. See Tex. R. Evid. 103; Tex. R. App. P. 33.1(a)(1)(B).
18
2020 was relevant because it was necessary to overcome the presumption of
revocation when attempting to probate a copy of the August 2019 addendum. And
Cynthia asserts that the exclusion of some of Robert Lee’s testimony and audio
recordings11 was harmful error because, without this evidence, she could not:
(a) overcome the presumption that the original August 2019 addendum was
destroyed by Jackie; (b) show that Jackie’s state of mind prior to executing the
August 2019 addendum was consistent with the addendum’s substance; (c) show
that Jackie’s affection for Charles and Pamela, the “beneficiaries under the prior July
2018 Will” had changed, and Jackie desired to change that will; and (d) show
Jackie’s desire to leave her estate to all of her children.
Because we have concluded that the August 2019 addendum was not a codicil,
the exclusion of this evidence could not have resulted in the rendition of an improper
judgment. See Tex. R. App. P. 44.1(a)(1). Thus, we need not address whether the
trial court abused its discretion in excluding the evidence related to the August 2019
addendum. See Tex. R. App. P. 47.1.
Cynthia also asserts that some of Robert’s excluded testimony and audio
recordings “support that the July 2018 Will and its disposition of [Jackie’s] estate
was unnatural,” thus showing that the July 2018 will was a product of undue
influence. But as explained above, we concluded that legally sufficient evidence
supports the trial court’s finding that the July 2018 will was not signed under duress
because there was no evidence that Pamela’s or Charles’s influence, if any,
subverted or overpowered Jackie’s mind at the time she signed the will. See
Rothermel, 369 S.W.2d at 923 (“The exertion of influence that was undue cannot be
11
Cynthia’s counsel made an offer of proof, describing what Robert’s testimony would
have consisted of and including the audio recordings, as well as transcripts of the recordings, in
the record. See Tex. R. Evid. 103.
19
inferred alone from opportunity, but there must be some testimony, direct or
circumstantial, to show that influence was not only present but that it was in fact
exerted with respect to the making of the testament itself.” (emphasis added)). Once
we reached this conclusion, we did not—and need not—determine whether the
disposition of Jackie’s estate was unnatural. See id. at 924(“The elements of the exertion and the effective operation of any influence possessed by Louis over his mother so as to subvert or overpower her will and cause the execution of this testament are not supported by any tangible evidence. Because of the disposition we make of this case we need not consider the other issues raised on this appeal.”). Accordingly, the trial court’s exclusion of any evidence going to this element did not cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1); Mittelsted v. Meriwether,661 S.W.3d 867
, 898 (Tex. App.—Houston [14th Dist.]
2023, pet. denied) (evidentiary errors are generally not grounds for reversal unless
the appellant demonstrates that the judgment turns on the challenged evidence or the
challenged evidence is controlling on a material, disputed, dispositive issue).
Finally, Cynthia complains about the trial court’s exclusion of testimony and
a journal kept by Anna Barrientez, one of Jackie’s in-home caregivers. Barrientez
did not begin working for Jackie until April 2020, nearly two years after the July
2018 will’s execution. Cynthia’s counsel sought to introduce Barrientez’s journal
as a business record.12 Charles’s counsel objected to the admission of the journal
because it was not temporally relevant to any purported testamentary documents, it
contained hearsay, and it contained Jackie’s private medical information in violation
of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).13
12
Cynthia preserved error on this issue by making an offer of proof. See Tex. R. Evid.
103; Tex. R. App. P. 33.1(a)(1)(B).
13
Pub. L. No. 104-191, 110 Stat. 1936.
20
After expressing concerns about potential HIPAA issues with the journal, the trial
court sustained Charles’s objection on relevance and hearsay grounds.
Cynthia’s counsel then sought to question Barrientez about her time with
Jackie, and Charles’s counsel objected:
Your Honor, I’m going to object to the testimony of this witness on the
basis of relevance. If her testimony involves the period from April of
2020 and thereafter it is not relevant in this case as there have been no
testamentary documents alleged by either party to have been executed
during that time period.
Cynthia responded that Barrientez’s testimony was relevant because it “established
the foundation of Jackie Mynard’s testamentary intent for the writing that Jackie
Mynard signed on August [sic] of 2019, and it shows that Ms. Mynard did not
abandon that intent.” Counsel explained that Barrientez’s testimony would show
that Jackie’s “affections changed for the people from her previously dated will of
July of 2018.”
Although Barrientez’s testimony and journal may have shown Jackie’s state
of mind after April of 2020, it has no bearing on her state of mind in July 2018, when
she executed the will admitted to probate. Cf. In re Est. of Spiller, No. 04-22-00050-
CV, 2023 WL 2733403, at *5-6 (Tex. App.—San Antonio Mar. 31, 2023, no pet.)
(mem. op.) (medical records concerning testator’s mental state from July 2005 did
not raise fact issue as to whether testator was unduly influenced into signing will in
November 2006). Thus, this evidence has no “tendency to make a fact more or less
probable than it would be without the evidence,” Tex. R. Evid. 401, and the trial
court did not abuse its discretion in excluding it. To the extent that Cynthia sought
to introduce this testimony to further her claim that the August 2019 addendum was
a codicil, we have already determined that this writing does not qualify as such.
21
Thus, the exclusion of this evidence did not cause the rendition of an improper
judgment. See Tex. R. App. P. 47.1(a)(1).
We conclude that Cynthia did not establish that the trial court’s exclusion of
this evidence was reversible error. We overrule her fourth issue.
C. Additional Findings
In her fifth issue, Cynthia contends the trial court reversibly erred by refusing
to file additional findings and conclusions as she requested. Specifically, Cynthia
asserts that the trial court erred by: (1) refusing to include any factual findings on
which it based its finding that the August 2019 addendum was not a codicil and did
not revive the March 2016 will or revoke the July 2018 will; (2) failing to address
the shifting burden of proof, which Charles was required to overcome; and (3) failing
to provide findings and conclusions regarding undue influence14 and attorney’s fees.
The trial court shall make any additional findings and conclusions that are
appropriate within ten days after a request is filed. Tex. R. Civ. P. 298; Johnston v.
McKinney Am., Inc., 9 S.W.3d 271, 277(Tex. App.—Houston [14th Dist.] 1999, pets. denied). However, if the record shows that the complaining party did not suffer injury from the court’s refusal to file additional or amended findings and conclusions, reversal is not required. Flanary v. Mills,150 S.W.3d 785, 792
(Tex. App.—Austin 2004, pet. denied); Johnston,9 S.W.3d at 277
. An appellant must show from the record that the trial court’s refusal to file the additional findings and conclusions was reasonably calculated to cause and did so cause the rendition of an improper judgment. Johnston,9 S.W.3d at 277
; see Tex. R. App. P. 44.1(a). When
an appellant requests findings directly contrary to, or inconsistent with, the original
14
Contrary to this contention, the trial court found that Jackie “had sufficient mental ability
to understand that she was making [the July 2018 will] and was not unduly influenced.” (Emphasis
added).
22
findings, the court need not make those requested findings. Id.Finally, if the requested findings will not result in a different judgment, those findings need not be made. Flanary,150 S.W.3d at 793
; Johnston,9 S.W.3d at 277
.
Here, Cynthia has not shown from the record how the trial court’s refusal to
file such additional findings and conclusions was reasonably calculated to cause and
did so cause the rendition of an improper judgment, nor has she shown she was
prevented from adequately presenting her complaints on appeal. See Tex. R. App.
P. 44.1(a). There is no evidence of injury to Cynthia because of the trial court’s
refusing her request for additional or amended findings and conclusions. See
Johnston, 9 S.W.3d at 271.
We overrule Cynthia’s fifth issue.
D. Attorney’s Fees
In her sixth and final issue, Cynthia contends the trial court abused its
discretion in failing to award her attorney’s fees. Texas Estates Code section
352.052 provides, in pertinent part as follows:
A person designated as a devisee in or beneficiary of a will or an alleged
will who, for the purpose of having the will or alleged will admitted to
probate, defends the will or alleged will or prosecutes any proceeding
in good faith and with just cause, whether or not successful, may be
allowed out of the estate the person’s necessary expenses and
disbursements in those proceedings, including reasonable attorney’s
fees.
Tex. Est. Code § 352.052(b). Thus, the trial court has the discretion to award
attorney’s fees to devisees or beneficiaries who attempt to admit a will to probate.
Id.; Code Construction Act, Tex. Gov’t Code § 31.016(1) (“ʻMay’ creates
discretionary authority or grants permission or a power.”).
23
In addition to the court’s discretionary authority to deny attorney’s fees, the
July 2018 will states, “Any person that contests this Will, forfeits any and all rights
of possession/ownership or awards and will be solely responsible for his/her
attorney fees . . . .” (Emphasis added). When construing a will, courts focus on the
testator’s intent, which must be ascertained from the language found within the four
corners of the will if possible. ConocoPhillips Co. v. Ramirez, 599 S.W.3d 296, 301 (Tex. 2020). Such in terrorem clauses “allow the intent of the testator to be given full effect and avoid vexatious litigation, often among members of the same family.” Di Portanova v. Monroe,402 S.W.3d 711, 715-16
(Tex. App.—Houston [1st Dist.] 2012, no pet.); Lesikar v. Moon,237 S.W.3d 361, 369-70
(Tex. App.—Houston [14th Dist.] 2007, pet. denied). If the purpose of a suit involving a will is to thwart the testator’s intent, the forfeiture clause should be effectuated. Ferguson v. Ferguson,111 S.W.3d 589, 599
(Tex. App.—Fort Worth 2003, pet. denied).
Cynthia neither acknowledges nor discusses the effect of this clause on her
claim for attorney’s fees. By its very language, however, it makes Cynthia, who
undisputedly contested the July 2018 will’s validity, solely responsible for her own
attorney’s fees. Given that provision, the trial court did not abuse its discretion in
denying attorney’s fees to Cynthia.
We overrule Cynthia’s sixth issue.
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Conclusion
Having overruled each of Cynthia’s issues, we affirm the trial court’s order
admitting the July 2018 will to probate.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Spain, and Wilson.
25