                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-15-00820-CV

                    IN THE ESTATE OF Stephen Everett KOONTZ, Deceased

                    From the 198th Judicial District Court, Bandera County, Texas
                                  Trial Court No. CV-14-0000048
                            Honorable M. Rex Emerson, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Karen Angelini, Justice
                  Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: November 16, 2016

REVERSED AND REMANDED

           Robert F. Stuart, Jr. appeals the trial court’s orders granting a no-evidence motion for

summary judgment in favor of Glea Hale, as independent executrix of the Estate of Stephen Everett

Koontz, and ordering Stuart to pay Hale, in her capacity as independent executrix, $18,029.49 in

attorney’s fees. We reverse the trial court’s judgment and remand the cause to the trial court for

further proceedings.

                                              BACKGROUND

           In 2005, Stephen Everett Koontz and Joyce Koontz executed wills leaving all of their

property to each other and naming Stuart as the contingent beneficiary to receive the property after

the death of the second spouse. Stuart was Stephen and Joyce’s great-nephew and was involved

in taking care of the couple since the early 2000’s.
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           In 2010, Stephen executed a new will revoking the 2005 will and leaving all of his property

to Hale, his sister. Joyce passed away on February 6, 2013, and Stephen passed away on July 25,

2013.

           On October 17, 2013, Hale applied to admit the 2010 will to probate and was appointed

independent executrix of Stephen’s estate. Hale also applied to have Joyce’s 2005 will admitted

to probate as a muniment of title. Four months later, Stuart filed a contest to the 2010 will asserting

Stephen lacked testamentary capacity when the 2010 will was executed and was under Hale’s

undue influence. Hale filed a no-evidence motion for summary judgment on Stuart’s claims of

lack of testamentary capacity and undue influence. The trial court granted Hale’s motion and also

ordered Stuart to pay attorney’s fees, finding that Stuart did not proceed in good faith or with just

cause in filing the will contest. Stuart appeals.

                                            TESTAMENTARY CAPACITY

           In his first issue, Stuart contends the trial court erred in granting Hale’s no-evidence motion

for summary judgment because he raised a fact issue on whether Stephen lacked testamentary

capacity when he executed the 2010 will. 1

           A no-evidence motion for summary judgment is essentially a motion for a pretrial directed

verdict. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006). When such a motion

is filed, “the burden shifts to the nonmoving party to present evidence raising an issue of material

fact as to the elements specified in the motion.” Id. “We review the evidence presented by the

motion and response in the light most favorable to the party against whom the summary judgment

was rendered, crediting evidence favorable to that party if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not.” Id. The granting of a no-



1
    Stuart does not raise any issue on appeal regarding his claim of undue influence.

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evidence motion for summary judgment is improper if “the nonmovant’s evidence amounts to

more than a scintilla of probative evidence to raise a genuine issue of material fact.” Boerjan v.

Rodriguez, 436 S.W.3d 307, 312 (Tex. 2014) (internal quotations omitted). “More than a scintilla

of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded

people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003) (internal citations omitted).

       Because Stuart sought to contest Stephen’s will after it had been admitted to probate, Stuart

had the burden to establish Stephen lacked testamentary capacity when he executed the 2010 will.

Lee v. Lee, 424 S.W.2d 609, 610 n.1 (Tex. 1968); Horton v. Horton, 965 S.W.2d 78, 85 (Tex.

App.—Fort Worth 1998, no pet.). A testator has testamentary capacity when he has sufficient

mental ability to understand he is making a will, the effect of making a will, and the general nature

and extent of his property. In re Estate of O’Neil, No. 04-11-00586-CV, 2012 WL 3776490, at *6

(Tex. App.—San Antonio Aug. 31, 2012, no pet.) (mem. op.); Long v. Long, 196 S.W.3d 460, 464

(Tex. App.—Dallas 2006, no pet.); In re Neville, 67 S.W.3d 522, 524 (Tex. App.—Texarkana

2002, no pet.). The testator also must know his next of kin and the natural objects of his bounty,

the claims upon them, and have sufficient memory to collect in his mind the elements of the

business transacted and hold them long enough to form a reasonable judgment about them. In re

Estate of O’Neil, 2012 WL 3776490, at *6; Long, 196 S.W.3d at 464; In re Neville, 67 S.W.3d at

524. The pivotal issue is whether the testator had testamentary capacity on the day the will was

executed. In re Estate of O’Neil, 2012 WL 3776490, at *6; Long, 196 S.W.3d at 464-65. However,

evidence of the testator’s state of mind at other times can be used to prove his state of mind on the

day the will was executed provided the evidence demonstrates a condition affecting his

testamentary capacity was persistent and likely was present at the time the will was executed. In

re Estate of O’Neil, 2012 WL 3776490, at *6; Long, 196 S.W.3d at 465. “To mount a successful
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challenge to the testamentary capacity of a testator, based on circumstantial evidence at times other

than the execution of the will, the [challenging party] must establish: ‘(1) that the evidence offered

indicates a lack of testamentary capacity; (2) that the evidence is probative of the testator’s capacity

(or lack thereof) on the day the will was executed; and (3) that the evidence provided is of a

satisfactory and convincing character, because probate will not be set aside on the basis of evidence

that creates only a suspicion of mental incapacity.’” In re Estate of O’Neil, 2012 WL 3776490, at

*6 (quoting In re Estate of Graham, 69 S.W.3d 598, 606 (Tex. App.—Corpus Christi 2001, no

pet.).

         In this case, Stuart attached his affidavit to his response to Hale’s no-evidence motion for

summary judgment, stating:

                My uncle, Stephen Everett Koontz suffered from severe bi-polar depression
         for decades.

                During the summer of 2010 when the Will at issue was executed, my uncle’s
         behavior throughout the summer was becoming more and more erratic and
         unpredictable.

                My uncle had several prolonged episodes of paranoid and delusional
         behavior that lasted for weeks rather than only days during the summer of 2010.

               Part of this behavior was because he was refusing to take his prescribed
         medications or taking them incorrectly.

                 The following events are just some of the strange behaviors that took place
         to the best of my recollection during the summer of 2010:

                My uncle would hide his medications in his chair;

                He began hiding money in the walls because he thought the Government
         was going to come take it from him;

                He started keeping a 9mm and shotgun next to his chair;

                He began to say that people were in the hills watching him;

                He began to accuse his devoted wife of over 50 years of having an affair;


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                 He tried to lease property that he used to own to a hunter and became irate
        when I told him that he couldn’t because he no longer owned that property, he said
        that it was, “his land”;

                 I found him trying to build a gazebo in the middle of the road.

               He could not drive and could only walk with a walker. He would not have
        been able to get to a lawyer to execute a Will on his own.

               I was concerned for my uncle and my aunt and their safety because of my
        uncle’s erratic and unpredictable behavior. My aunt and I decided to remove all of
        the guns from their house that summer so that a horrible accident would not happen.

               We decided that summer that my uncle needed more care than we as a
        family could provide and that a nursing home facility would be best for his safety
        and care. We chose Bandera Rehabilitation and Healthcare.

               Shortly after being admitted there, my uncle tried to commit suicide by
        placing a plastic bag over his head.

        We hold Stuart’s affidavit contains more than a scintilla of evidence to raise a genuine

issue of material fact with regard to Stephen’s testamentary capacity. Stephen’s attempt to lease

property he longer owned raises a fact issue as to whether he understood the nature and extent of

his property. 2 Furthermore, his delusion that his wife of fifty years was having an affair raises a

fact issue as to whether this delusion led him to change his 2005 will which had left all of his

property to his wife. See Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex. 1964) (noting testator

lacks testamentary capacity when influenced by an insane delusion or a belief in a supposed state

of facts that do not exist and which no rational person would believe); Orozco v. Orozco, 917

S.W.2d 70, 74-75 (Tex. App.—San Antonio 1996, writ denied) (same). Finally, because the will

was executed on August 12, 2010 and the events described in Stuart’s affidavit occurred during

the summer of 2010, the evidence is probative of Stephen’s lack of testamentary capacity on the

day the will was executed.


2
 Hale admitted in her deposition that after Stephen executed the 2010 will, he continued to make statements about
Stuart inheriting the property, but she never corrected him.

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       Hale relies heavily on the deposition testimony of the attorney who drafted the 2010 will

and who was present at its execution. Although the attorney testified she believed Stephen had

testamentary capacity, she also testified she would have taken additional steps to ensure Stephen

knew what he was doing if she had known he was suffering from bipolar disorder, had attempted

suicide, and had experienced delusional episodes. Furthermore, the attorney testified Stephen told

her he was living at home even though he was living in a nursing home. Viewing this testimony

in the light most favorable to Stuart, the attorney qualified her opinion regarding Stephen’s

testamentary capacity and would have taken additional steps if she had been aware of the additional

evidence presented in Stuart’s affidavit.

       Stuart’s first issue is sustained, and the trial court’s order granting the no-evidence

summary judgment is reversed. Since we hold that the trial court improperly granted the no—

evidence motion for summary judgment, we also reverse the trial court’s award of attorney’s fees.

Strange v. HRsmart, Inc., 400 S.W.3d 125, 130 (Tex. App.—Dallas 2013, no pet.); Friedman v.

Atl. Funding Corp., 936 S.W.2d 38, 42 (Tex. App.—San Antonio 1996, no writ).

                                            CONCLUSION

       The trial court’s judgment is reversed, and the cause is remanded to the trial court for

further proceedings.

                                                 Marialyn Barnard, Justice




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