                                                                             ACCEPTED
                                                                        04-14-00564-CV
                                                             FOURTH COURT OF APPEALS
                                                                  SAN ANTONIO, TEXAS
                                                                  2/10/2015 12:39:39 PM
                                                                          KEITH HOTTLE
                                                                                 CLERK

                    CASE NO. 04-14-00564-CV

                                                    FILED IN
                                             4th COURT OF APPEALS
             IN THE   FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS
                                            02/10/2015 12:39:39 PM
                      SAN ANTONIO, TEXAS
                                               KEITH E. HOTTLE
                                                     Clerk

                       DEBORAH BEDELL,
                                              Appellant
                                 v.

                        ROBYN ZAELWA,
                                              Appellee



On Appeal from the Probate Court Number Two of Bexar County, Texas
                      Cause No. 2013-PC-0636


      APPELLANT DEBORAH BEDELL’S AMENDED BRIEF

                    Oral Argument Requested

                         Respectfully submitted,



                         BY:   John D. Wennermark
                         JOHN D. WENNERMARK
                         State Bar No:     21177000
                         1924 N. Main Avenue
                         San Antonio, Texas 78212
                         (210) 226-6262 - Telephone
                         (210) 225-1351 – Fax
                         johnwennermark@hotmail.com

                         Counsel for Appellant
                  IDENTITY OF PARTIES AND COUNSEL


Party-Appellant

Deborah Bedell


Counsel-Appellant

John D. Wennermark
1924 N. Main Ave
San Antonio, Tx. 78212
(210) 226-6262
(210) 225-1351 - FAX


Party-Appellee

Robyn Zalewa

Counsel-Appellee

James W. Carter, IV
112 East Pecan Street
San Antonio, Texas 8205
(210) 222-0586
(210) 225-4031 - FAX




                                 i
              REQUEST FOR ORAL ARGUMENT

Appellant requests oral argument herein.




                                  ii
                             TABLE OF CONTENTS
                                                                          Page No.

Identity of Parties and Counsel                                               i

Request For Oral Argument                                                     ii

Table of Contents                                                             iii, iv

Index of Authorities                                                          v, vi

Referecnces to the Parties                                                    1

References to the Record                                                      1

Statement of the Case                                                         1

Issue Presented For Review                                                    1

Appellant’s Point of Error Number One - The trial court erred in Finding
of Fact No. 4 wherein it was stated, “There was no evidence of revocation
of the 2003 Will raised by the Contestant.”                                   8

Appellant’s Pont of Error Number Two - The trial court erred in Finding
of Fact No. 5 wherein it was stated, “Contestant further alleged that the
2003 Will was not a lawful, valid will. No evidence was raised by Contestant
on this issue.”                                                            16

Appellant’s Point of Error Number Three - The trial court erred in Finding
 of Fact No. 7 wherein it was stated, “Contestant failed to prove that the
July 7, 200 [sic] Will offered by her was executed with the formalities and
solemnities required by law, failed to prove that the competing Will was
attested by two or more credible witnesses of lawful age and failed to prove
that the witnesses signed the competing Will in their handwriting in the
presence of the testator.’                                                   16

Appellant’s Point of Error Number Four - The trial court erred in Finding
of Fact No. 8 wherein it was stated, “Contestant further failed to prove

that the testator had testamentary capacity at the time of the execution of
the Will.”                                                                    17
                                          iii
Appellant’s Point of Error Number Five – The trial court erred in
Finding of fact No. 9 wherein it stated, “ The court further finds the
competing Will contained no exordium clause” intimating that such
is required in Texas for a valid will.                                       20

Appellant’s Point of Error Number Six - The trial court erred in Finding
of Fact No. 10 wherein it stated, “The court further finds that the competing
Will contains numerous unintelligible handwritten interlineations and that
no competent vidence of the date of the execution or interlineations was
adduced by the contestant. The court finds that the competing Will contains
numerous interlineations that were made with different pens at different
times. No competent evidence was offered concerning the date(s) when the
interlineations were made on the competing will or the identity of the
individual(s) who made the interlineations.”                                  21

Appellant’s Point of Error Number Seven - The trial court erred in Finding
of fact No. 11 wherein it stated, “The contestant’s brother, Gus Brown, was
unable to offer a date on which he allegedly executed the competing Will.” 25

Appellant’s Point of Error Number Eight - The trial court erred in Finding
of Fact/Conclusion of Law No. 12 wherein it stated, “The court therefore
finds and concludes that Wade Bedell either revoked the competing Will,
or alternatively, that Wade Bedell never intended for the competing will
to become effective.”                                                        26

Appellant’s Point of Error Number Nine – The trial court erred in
Conclusion of Law No. 14 wherein it stated, “The court concludes that
Deborah Bedell failed to offer sufficient evidence to prove and establish
all lawful elements of the July 7, 2005 competing will, that the contestant
further failed to prove with sufficient evidence that the 2003 will was
revoked, and failed to show that the 2003 will was not a valid, lawful will.” 27

Statement of Facts                                                           3

Summary of the Argument                                                      4

Argument and Authorities                                                     8

Conclusion                                                                   28

Prayer                                                                       28
                                             iv
Certificate of Compliance       29

Certificate of Service          29




                            v
                             INDEX OF AUTHORITIES

CASES

Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464, 472,
(Dallas Civ.App., 1956 wr. ref., n.r.e.)                          8, 14, 21

Cason v. Taylor, 51 S.W.3d 397 (Tex App Waco-2001)                8, 21

Ferguson v. Ferguson, 27 Tex. 339 (1864)                          25

In Re Brown’s Estate, 507 S.W.2d 801,
(Tex. Civ. App – Dallas 1974)                                     25

Lisby v. Richardson's Estate, 623 S.W.2d 448, 449
(Tex.App.--Texarkana 1981, no writ)                               8, 21

McElroy v. Phink, 76 S.W. 753 (Tex. 1903)                         15, 24

Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App. Amarillo 1948)       22

Simmons v. Gardner, 134 S.W.2d 338
(Tex.Civ.App. Fort Worth 1939)                                    22

Triestman v. Kilgore, 838 S.W.2d 547 (Tex. 1992)                  13

Williams v. Noland, 10 Tex.Civ.App. 629, 32 S.W. 328
(1895, writ ref'd).                                               25

STATUTES

TEX PB. CODE ANN. § 57                                               9, 10, 27

TEX PB. CODE ANN. § 59(a)                                 9, 10, 12, 17, 24, 27

TEX PB. CODE ANN. § 63                                             8, 22, 24, 26

TEX PB. CODE ANN. § 88(b)                                        10, 14, 24, 27



                                        vi
                   CASE NO. 04-14-00564-CV


             IN THE FOURTH COURT OF APPEALS
                     SAN ANTONIO, TEXAS


                      DEBORAH BEDELL,
                                            Appellant
                                v.

                       ROBYN ZAELWA,
                                            Appellee



On Appeal from the Probate Court Number Two of Bexar County, Texas
                     Cause No. 2013-PC-0636


     APPELLANT DEBORAH BEDELL’S AMENDED BRIEF
TO THE HORNORABLE FOURTH COURT OF APPEALS:

      COMES NOW, Deborah Bedell, Appellant and subsequent to the trial court

finally filing Findings of Fact and Conclusions of law herein, files this her

Amended Appellant’s Brief, respectfully showing the court as follows:

       REFERENCES TO PARTIES AND OTHER DEFINED TERMS

      For convenient reference, the following names, when used by Appellant

herein, will have the following meanings:

Appellant    Deborah Bedell

Appellee     Robyn Zalewa

                       REFERENCES TO THE RECORD

References to the Clerk’s Record will be designated as “CR.”

References to the Clerk’s Second Supplemental Record will be designated “CR2.”

References to the Reporter’s record will be designated as “RR.”

References to Appendices will be designated as “APP. TAB.”

References to the Findings of Fact and Conclusions of Law “FFCL”

                          STATEMENT OF THE CASE

      This is a will Contest and Application for Probate of Will and Letters of

Administration With Will Attached filed by Appellant Deborah Bedell, the wife of

the deceased, in Cause Number 2013-PC-0636 in Probate Court Number Two,

Bexar County, Texas, In The Estate Of Wade R. Bedell, Jr. Deceased.



                                          1
                      ISSUES PRESENTED FOR REVIEW

POINT OF ERROR NUMBER ONE - The trial court erred in Finding of Fact No.
4 wherein it was stated, “There was no evidence of revocation of the 2003 Will
raised by the Contestant.”

POINT OF ERROR NUMBER TWO - The trial court erred in Finding of Fact No.
5 wherein it was stated, “Contestant further alleged that the 2003 Will was not a
lawful, valid will. No evidence was raised by Contestant on this issue.”

POINT OF ERROR NUMBER THREE - The trial court erred in Finding of Fact
No. 7 wherein it was stated, “Contestant failed to prove that the July 7, 200 [sic]
Will offered by her was executed with the formalities and solemnities required by
law, failed to prove that the competing Will was attested by two or more credible
witnesses of lawful age and failed to prove that the witnesses signed the competing
Will in their handwriting in the presence of the testator.’

POINT OF ERROR NUMBER FOUR - The trial court erred in Finding of Fact
No. 8 wherein it was stated, “Contestant further failed to prove that the testator had
testamentary capacity at the time of the execution on the Will.”

POINT OF ERROR NUMBER FIVE - The trial court erred in Finding of Fact No.
9 wherein it stated, “ The court further finds the competing Will contained no
exordium clause” intimating that such is required in Texas for a valid will.

POINT OF ERROR NUMBER SIX - The trial court erred in Finding of Fact No.
10 wherein it stated, “The court further finds that the competing Will contains
numerous unintelligible handwritten interlineations and that no competent vidence
of the date of the execution or interlineations was adduced by the contestant. The
court finds that the competing Will contains numerous interlineations that were
made with different pens at different times. No competent evidence was offered
concerning the date(s) when the interlineations were made on the competing will
or the identity of the individual(s)who made the interlineations.”

POINT OF ERROR NUMBER SEVEN - The trial court erred in Finding of fact
No. 11 wherein it stated, “The contestant’s brother, Gus Brown, was unable to
offer a date on which he allegedly executed the competing Will.”            #

POINT OF ERROR NUMBER EIGHT - The trial court erred in Finding
of Fact/Conclusion of Law No. 12 wherein it stated, “The court therefore


                                           2
finds and concludes that Wade Bedell either revoked the competing Will,
or alternatively, that Wade Bedell never intended for the competing will
to become effective.”                                                                 #

POINT OF ERROR NUMBER NINE – The trial court erred in Conclusion of Law
No. 14 wherein it stated, “The court concludes that Deborah Bedell failed to offer
sufficient evidence to prove and establish all lawful elements of the July 7, 2005
competing will, that the contestant further failed to prove with sufficient evidence that the
2003 will was revoked, and failed to show that the 2003 will was not a valid, lawful
will.”

                              STATEMEMT OF FACTS

   Decedent Wade R. Bedell died on February 14, 2013, in Bexar County, Texas,

where he was domiciled at the time of his death. [CR 8]. Six days later on

February 20, 2013, Appellee, Robyn Joan Zalewa filed an Application to Probate

Will and Issuance of Letters Testamentary proffering an alleged will dated June 17,

2003. [CR 8] The purported will was admitted to probate and Letters

Testamentary were issued to Appellee on February 20, 2013. [CR 6] Appellant,

Deborah Bedell, the wife of the Decedent [RR P84 L3 ],on April 4, 2013 filed her

Application for Probate of Will and Letters of Administration With Will Annexed.

The will annexed to Appellant’s application was retrieved by Appellant from the

Bexar County Clerks will depository where it had been since shortly after its

execution [RR P91 L16]. The will proffered by Appellant was executed on July 7,

2005 [CRS 8]. In conjunction with Appellant’s application she also filed on April

4, 2013 her Will Contest opposing the purported will filed by Appellee dated June

17, 2003. [CR 13]. Appellee filed no contest to Appellant’s application or the will


                                             3
annexed thereto. Subsequently, on the 25th day of February, 2014, came on to be

heard a bench trial on the merits of both the Will Contest and Application for

Probate of Will and Letters of Administration with Will Annexed filed by

Appellant, in opposition to the June 17, 2003, purported Last Will and Testament

of Wade R. Bedell, Jr., admitted to probate on March 4, 2013, and at the

conclusion thereof judgment entered on April 1, 2014, denying the contest of the

June 17, 2003 will proffered by Applelee and denying the probate of the July 7,

2005, will proffered by Appellant. The court also found that Appellant was

entitled to a survivor’s homestead right in real property owned by decedent. It is

from this judgment that Appellant brings this appeal.

                      SUMMARY OF THE ARGUMENT

      Appellant presents the following arguments in this Brief: First, Appellant

will show The trial court erred in Finding of Fact No. 4 wherein it was stated,

“There was no evidence of revocation of the 2003 Will raised by the Contestant.”

because such evidence was unnecessary as the 2003 will was revoked by

implication by the 2005 will.

      Second, the trial court erred in Finding of Fact No. 5 wherein it was stated,

“Contestant further alleged that the 2003 Will was not a lawful, valid will. No

evidence was raised by Contestant on this issue.” because the 2003 will was

revoked by implication by the 2005 will thus making it not a lawful, valid will.



                                          4
      Third, the trial court erred in Finding of Fact No. 7 wherein it was stated,

“Contestant failed to prove that the July 7, 200 [sic] Will offered by her was

executed with the formalities and solemnities required by law, failed to prove that

the competing Will was attested by two or more credible witnesses of lawful age

and failed to prove that the witnesses signed the competing Will in their and

writing in the presence of the testator.’ because the testimony and evidence

adduced by Appellant at trial proved that the 2005 will of Wade Bedell was

executed with the formalities and solemnities required by law.

      Fourth, the trial court erred in Finding of Fact No. 8 wherein it was stated,

“Contestant further failed to prove that the testator had testamentary capacity at the

time of the execution on the Will” because the testimony and a finding to the

contrary by the trial court proved that Wade Bedell did have testamentary capacity

at the time of the execution of the will and thereafter.

      Fifth, the trial court erred in Finding of fact No. 9 wherein it stated, “ The

court further finds the competing Will contained no exordium clause” intimating

that such is required in Texas for a valid will, because no exordium clause is

required in the State of Texas.

      Sixth, the trial court erred in Finding of Fact No. 10 wherein it stated, “The

court further finds that the competing Will contains numerous unintelligible

handwritten interlineations and that no competent evidence of the date of the



                                           5
execution or interlineations was adduced by the contestant. The court finds that the

competing Will contains numerous interlineations that were made with different

pens at different times. No competent evidence was offered concerning the date(s)

when the interlineations were made on the competing will or the identity of the

individual(s)who made the interlineations,” because this holding is contrary to case

law cited in Point of Error Number Six herein.

      Seventh, the trial court erred in Finding of fact No. 11 wherein it stated,

“The contestant’s brother, Gus Brown, was unable to offer a date on which he

allegedly executed the competing Will,” because witness Gus Brown’s

uncontroverted testimony set forth in the Reporters Record was that the 2005 will

was executed on July 5 of that year.

      Eighth, the trial court erred in Finding of Fact/Conclusion of Law No. 12

wherein it stated, “The court therefore finds and concludes that Wade Bedell either

revoked the competing Will, or alternatively, that Wade Bedell never intended for

the competing will to become effective, ” because (1) there was no evidence or

testimony adduced by Appellee herein regarding any act by Wade Bedell in

compliance with Probate Code §63 which sets forth the requirements for will

revocation; and (2) there was no evidence or testimony at trial which could have

been considered as Wade Bedell not wanting the 2005 will to become effective.




                                          6
      Ninth, the trial court erred in Conclusion of Law No. 14 wherein it stated,

“The court concludes that Deborah Bedell failed to offer sufficient evidence to

prove and establish all lawful elements of the July 7, 2005 competing will, that the

contestant further failed to prove with sufficient evidence that the 2003 will was

revoked, and failed to show that the 2003 will was not a valid, lawful will,”

because as heretofore set forth, (1) Appellant proved all lawful elements of the July

7, 2005, will and (2) the revocation by implication of the 2003 will negated the

necessity of revocation of the 2003 will or its validity and/or lawfulness.




                                          7
                       ARGUMENT AND AUTHORITIES

                APPELLANT’S POINT OF ERROR NUMBER ONE

     The trial court erred in Finding of Fact No. 4 wherein it was stated,
“There was no evidence of revocation of the 2003 Will raised by the
Contestant.”

      Two wills were before the trial court in this instance; one dated June 17,

2003, and another dated July 7, 2005. The decedent here died and both of the wills

before the court were executed prior to the enactment of the Texas Estates Code

which became effective January 1, 2014, thus the previous Texas Probate Code is

applicable in this case.

     Regarding the revocation of wills, TEX PB. CODE ANN. §63 states:

             “No will in writing, and no clause thereof or devise therein, shall be
             revoked, except by a subsequent will, codicil, or declaration in
             writing, executed with like formalities, or by the testator destroying or
             canceling the same, or causing it to be done in his presence.”

Texas case law in this regard is set forth in the 2001 Waco Court of Appeals case

Cason v. Taylor, 51 S.W.3d 397 (Tex App Waco-2001). The court there held:

      “The standard way to revoke a will is by executing a new will that contains
      an expressed revocation clause, i.e., "I revoke all earlier wills and codicils."
      Burton v. Bell, 380 S.W.2d 561, 569 (Tex.1964). However, if a later will
      makes a complete disposition of the testator's property, it revokes all prior
      wills by implication. Lisby v. Richardson's Estate, 623 S.W.2d 448, 449
      (Tex.App.--Texarkana 1981, no writ); Baptist Foundation of Texas v.
      Buchanan, 291 S.W.2d 464, 472 (Tex.Civ.App. --Dallas 1956, writ ref'd
      n.r.e.)”

Therefore, the questions here are whether or not the 2005 will proffered by


                                          8
Appellant (1) was in writing, executed with the formalities required to make it a

valid will and (2) made a complete disposition of the testators property. If so, the

2005 will revoked the 2003 will by implication and no further proof of revocation

was required.

                 Complete disposition of the testators property.

      On April 4, 2013, Appellant caused to be filed her Application for Letters of

Administration With Will Annexed [CR-10 & CR2-8]. Appellant would direct the

court’s attention to that instrument. The 2005 will detailed all of Wade Bedell’s

property down to linens and kitchen utinsils. Appellee did not file any pleadings,

adduce any evidence or elicit any testimony that the 2005 will was not a complete

disposition of Wade Bedell’s property. The 2005 will, in fact, disposed of all of

Wade Bedell’s property, an uncontroverted fact.

                 Subsequent will executed with like formalities.

TEX PB. CODE ANN. §57 states:

      “Every person who has attained the age of eighteen years, or who is or has
      been lawfully married, or who is a member of the armed forces of the United
      States or of the auxiliaries thereof or of the maritime service at the time the
      will is made, being of sound mind, shall have the right and power to make a
      last will and testament, under the rules and limitations prescribed by law.”

TEX PB. CODE ANN. §59(a) states:

      “Every last will and testament, except where otherwise provided by law,
      shall be in writing and signed by the testator in person or by another person
      for him by his direction and in his presence, and shall, if not wholly in the
      handwriting of the testator, be attested by two or more credible witnesses


                                          9
       above the age of fourteen years who shall subscribe their names thereto in
       their own handwriting in the presence of the testator.”

TEX PB. CODE ANN. §88(b) states:
       “To obtain probate of a will, the applicant must also prove to the satisfaction
       of the court:
       (1) If the will is not self-proved as provided by this Code, that the testator, at
       the time of executing the will, was at least eighteen years of age, or was or
       had been lawfully married, or was a member of the armed forces of the
       United States or of the auxiliaries thereof, or of the Maritime Service of the
       United States, and was of sound mind; and
       (2) If the will is not self-proved as provided by this Code, that the testator
       executed the will with the formalities and solemnities and under the
       circumstances required by law to make it a valid will; and
       (3) That such will was not revoked by the testator.”

       On April 4, 2013, Appellant caused to be filed her Application for Letters of

Administration With Will Annexed [CR-10 & CR2-8]. No contest was filed to the

application. Appellant’s burden of proof was to show that the proffered will

complied with §57, §59(a) and §88(b) of the Texas Probate Code set forth above as

a valid will.

                           TEXAS PROBATE CODE §57

       The elements required by §57 are that (1) Wade Bedell had attained the age

of eighteen years and (2) at the time the will is made, was of sound mind.

       The evidence in this cause is undisputed that: Decedent died testate on

February 14, 2013 at San Antonio, Bexar County, Texas, at the age of 95 years

and that he was an octogenarian at the time of his drafting and signing the 2005


                                           10
will. The testimony regarding Wade Bedell’s age at the time he executed the will

was offered by subscribing witness, Gus Brown, testified as follows:

[RR P31 L8-12]

The Court:         Okay, And then – and then they’re going to ask you all the
                   questions, but did we do Wade any disservice in the way we
                   talked about him?
The Witness:       Well, I do think he was in his late 80s when this will was made.

As to decedent being of sound mind, the undisputed testimony at the trial of this

cause by subscribing witness, Gus Brown was affirmative as follows:

[RR P 31 L13-16]

The Court:         Yeah okay.
The Witness:       And he was a very, very intelligent man, but he had trouble
                   seeing.

[RR P34 L1-3]
Mr. Wennermark: Now, Mr. Brown, what was his mental condition at that time?
The Witness:    He was a very sharp older man.

Further, at the trial of this cause after Appellant rested, Appellee made a Motion

for Directed Verdict, among other things stating: [RR P 58 L5-14]

:     “There’s been no evidence that the testator was of sound mind. And that’s a
      requirement for someone offering a will to probate to prove that Mr. Bedell,
      as the Court is well aware, had sufficient ability to understand the business
      and effects of his act, the capacity to know the objects of his bounty, the
      capacity to understand the general nature and extent of his property, memory
      sufficient to collect the elements and hold them long enough to perceive
      their obvious relation and form a reasonable judgment.”




                                         11
Indicative of the court believing there was, indeed, evidence that Wade Bedell was

of sound mind was the court’s denial of Appellee’s Motion for Instructed Verdict

at [RR P63 L 1-3].

                        TEXAS PROBATE CODE §59(a)

       The elements required by §59(a) are that the 2005 will (1) be in writing and,

(2) signed by the testator in person or by another person for him by his direction

and in his presence, and (3) shall, if not wholly in the handwriting of the testator,

be attested by two or more credible witnesses above the age of fourteen years who

shall subscribe their names thereto in their own handwriting in the presence of the

testator.

       In compliance with Probate Code §59(a), [1]Decedents written Will dated

July 7, 2005,[CR2-8] was filed herein. [2] Subscribing Witness Gus Brown

testified at [RR 35 L 2-8]:

Mr. Wennermark: Now, on that will, there’s a date written toward the bottom. See
                that date?
Witness:        Uh-huh.
Mr. Wennermark: Was that the date that he signed the will?
Witness:        Sure. Seven – two days after my birthday.
Mr. Wennermark: Okay.
Witness:        Seven July 05.

[3] The subscribing witnesses to the Will were Joe Cervantes, Gus Brown and

Elizabeth R.Lazrony.[CR2-9] Gus Brown testified that all 3 of the witnesses were

present and witnessed the will in the presence of the decedent.[RR P 33-L11-25]



                                          12
Mr. Wennermark:       Okay, after he had this will blown up, did you witness the will
there at his house?
Witness:        Yes
Mr. Wennermark: You were living there also at his house?
Witness:        Correct.
Mr. Wennermark: Okay, now there’s a Joe Cervantes who signed. Did you see
                him sign the will too?
Witness:        Yes, I saw him.
Mr. Wennermark: Okay. And there’s a notary that also signed. Was she there and
                also signed?
Witness:        Yes.
Mr. Wennermark: All three of you were there?
Witness:        Uh huh,
Mr. Wennermark: And he asked you to sign the will?
Witness:        Right.

   At the trial of this cause Joe Cervantes testified at [RR P 65 L23-25, P66 L1-2]:

Mr. Carter: And I mean it’s – is that your signature in the bottom left-hand corner
            of the purported will?
Witness:    Sorry to say I don’t think so, but – Cervantes is kind of like the way I
            sign, but I don’t recall signing this. I mean –

Despite the unfortunate lapse of memory on the part of Subscribing Witness Joe

Cervantes, as can be seen on the will offered by Appellant herein,[CR 2] the will

was also also witnessed by Elizabeth Lazrony, Notary Public for the State of

Texas, fulfilling the requirement of two “credible” subscribing witnesses in §59(a)

of the Probate Code. A credible witness means a competent witness. A

competent witness to a will is one who receives no pecuniary benefit under its

terms, Triestman v. Kilgore, 838 S.W.2d 547 (Tex. 1992).

       §59(a) of the Probate Code requires further that the subscribing witnesses be

“above the age of fourteen.” Although there is no direct testimony as to the ages of

                                           13
subscribing witnesses to the will, Gus Brown testified that he was a cab driver,

which would require him to be above the age of fourteen and Elizabeth Lazrony

was a Notary Public for the State of Texas. Sec. 406.004 of the Texas Government

Code provides that “Each person appointed and commissioned as a notary public

shall be at least 18 years of age…” Therefore there was sufficient evidence before

the court that subscribing witnesses Gus Brown and Elizabeth Lazrony were over

the age of fourteen.

                          TEXAS PROBATE CODE §88(b)
       Decedents written Will dated July 7, 2005, was filed herein[CR2-8]. The
2005 will was not self-proved as provided by the Probate Code. At trial, the
uncontroverted evidence and testimony showed
(1) That Wade Bedell was at the time of executing the will, was over the age of
eighteen.
[RR P31 L8-12]

The Court: Okay, And then – and then they’re going to ask you all the questions,

but did we do Wade any disservice in the way we talked about him?

The Witness:Well, I do think he was in his late 80s when this will was made.

(2) That as discussed above Wade Bedell executed the will with the formalities and
solemnities and under the circumstances required by law to make it a valid will;
and
(3) That such will was not revoked by Wade Bedell.
       In Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464, 472, (Dallas

Civ.App., 1956 wr. ref., n.r.e.), it is stated:



                                            14
      "The burden is upon the party who asserts revocation `to show by a
      preponderance of the testimony the execution, attended by due formality and
      legal requirements, of a subsequent instrument, which either expressly or
      impliedly revoked the former will.”

   The Texas Supreme Court in McElroy v. Phink, 76 S.W. 753 (Tex. 1903) held

that there exists a presumption of continuity of status and a prima facie case

against revocation when a will is established as having been duly executed by the

testator, unattended by circumstances which cast suspicion upon it, stating:

      "Before admitting a will to probate it must be proved to the satisfaction of
      the court * * * (5) that such will has not been revoked by the testator.' In
      order to construe the fifth subdivision of the article, let us take the case of a
      will which has been produced without mutilation or other evidence of an
      intent to revoke it, and the execution of which has been duly proved. Does
      the statute make it incumbent upon the proponent in such a case to go
      further, and offer additional evidence to prove the negative, namely, that it
      has not been revoked in any of the methods provided by law? We think not.
      The will having been established as having been duly executed by the
      testator, and having been produced, unattended by any circumstances which
      cast suspicion upon it, the presumption of the continuity of the status
      applies, and makes a prima facie case as against a revocation.'

      In the instant case there exists a presumption of continuity of status and a

prima facie case against revocation of the will proffered by Appellant. The will

was established as having been duly executed pursuant to Probate Code Sections

57 and 59(a) unattended by circumstances which cast suspicion upon it.

      Therefore, the 2005 will proffered by Appellant (1) was in writing, executed

with the formalities required to make it a valid will and (2) made a complete

disposition of the testators property. Therefore, the 2005 will revoked the 2003



                                          15
will by implication and no further proof of revocation was required of Appellant

thusly, the trial court erred in Finding of Fact No. 4 wherein it was stated, “There

was no evidence of revocation of the 2003 Will raised by the Contestant.”


               APPELLANT’S POINT OF ERROR NUMBER TWO

       The trial court erred in Finding of Fact No. 5 wherein it was stated,
“Contestant further alleged that the 2003 Will was not a lawful, valid will. No
evidence was raised by Contestant on this issue.”

        Appellant would respectfully refer the court to the arguments and

authorities contained above in Appellant’s Point of Error Number One as being

both applicable and indicative of the trial court’s error set forth in Appellant’s

Point of Error Number Two. The evidence discussed above showed that the 2003

Will was revoked and thereby no longer a valid and lawful will. Thus, the trial

court erred in Finding of Fact No. 5 wherein it was stated, “Contestant further

alleged that the 2003 Will was not a lawful, valid will. No evidence was raised by

Contestant on this issue.”


              APPELLANT’S POINT OF ERROR NUMBER THREE

        The trial court erred in Finding of Fact No. 7 wherein it was stated,
“Contestant failed to prove that the July 7, 200 [sic] Will offered by her was
executed with the formalities and solemnities required by law, failed to prove
that the competing Will was attested by two or more credible witnesses of
lawful age and failed to prove that the witnesses signed the competing Will in
their handwriting in the presence of the testator.”




                                          16
        As stated in Point of Error Number One, Section 59(a) of the Texas

Probate Code sets forth the formalities and solemnities required by law to

constitute a valid will. The elements set forth in §59(a) are that the will [1] shall

be in writing [2] signed by the testator in person or by another person for him by

his direction and in his presence, and [3] shall, if not wholly in the handwriting of

the testator, be attested by two or more credible witnesses above the age of

fourteen years who shall subscribe their names thereto in their own handwriting in

the presence of the testator. Appellant would again respectfully refer the court to

the arguments and authorities contained above in Appellant’s Point of Error

Number One as being both applicable and indicative of the trial court’s error set

forth in Appellant’s Point of Error Number Three.



               APPELLANT’S POINT OF ERROR NUMBER FOUR

       The trial court erred in Finding of Fact No. 8 wherein it was stated,
“Contestant further failed to prove that the testator had testamentary
capacity at the time of the execution on the Will.”

      At the trial of this cause after Appellant rested, Appellee made a Motion

for Directed Verdict, among other things stating at [RR P 58 L5-14]:

      “There’s been no evidence that the testator is of sound mind. And that’s a
      requirement for someone offering a will to probate to prove that Mr. Bedell,
      as the court is well aware, had sufficient ability to understand the business
      and effects of his cat, the capacity to know the objects of his bounty, the
      capacity to understand the general nature and extent of his property, memory



                                          17
      sufficient to collect the elements and hold them long enough to perceive
      their obvious relation and form a reasonable judgment.”

Again, during his rambling motion, Appellee’s counsel at [RR P 58 L19-21],

suggested as a basis of his motion:
      “And there was no testimony at all on—whether Mr. Bedell was a testator of
      sound mind.”

Finally, at the conclusion of his motion, counsel stated, at [RR P 62 L6-10]:

      “I have some additional evidence to offer in our case, but I do think a
      directed verdict is appropriate if for no other reason than there was
      absolutely no evidence, not a scintilla, that the testator was of sound mind.”

The court immediately stated at [RR P 62 L11-12]:

        “Well, Gus says enough stuff to get him there.”

The court denied Appellee’s motion for directed verdict at [RR P 63 L2-3].

        A look at the record here shows that, the trial court, after being notified

that his findings of fact and conclusions of law were late […….] wholly failed to

timely make such findings pursuant to the Texas Rules of Civil Procedure.

Additionally, the record shows that the findings of fact and conclusions of law

were not made and filed in this case until after this case was on appeal and in fact,

after Appellant went to the time and expense of filing her Appellant’s Brief herein

when Appellee filed a motion to abate these proceedings. On October 31,2014,
this

appeal was abated to the trial court with instructions to enter findings of fact and

conclusions of law, and the trial court clerk was ordered to file a supplemental



                                          18
clerk's record containing the findings and conclusions. The trial court clerk faxed

the findings of fact and conclusions of law to this court on December 12, 2014. It

appears that after almost eight months delay the trial court signed its Findings of

Fact & Conclusions of Law on November 21, 2014. In light of the length of time

between the trial of this cause and the signing of Findings of Fact & Conclusions

of law and without benefit of the Reporter’s Record, apparently the court forgot

that it had ruled on the matter of testamentary capacity at the trial when denying

Appellee’s motion for directed verdict based upon that issue.

        Without waiving the above, Appellant would show that in addition to the

court’s assertion that, “Well Gus says enough stuff to get him there,” there exists

uncontroverted testimony to the testamentary capacity of the decedent. In further

compliance with the Probate Code §57, at the trial of this cause, regarding Wade

Bedell’s being of sound mind at the time the will was made Gus Brown testified at

[RR P 31 L13-16] as follows;

The Court:          Yeah okay.
The Witness:        And he was a very, very intelligent man, but he had trouble
                    seeing.

at [RR P34 L1-3];

Mr. Wennermark: Now, Mr. Brown, what was his mental condition at that time?
The Witness:    He was a very sharp older man.

     Appellant would further point out that the decedent evidenced testamentary

capacity by virtue of his typing his own will and listing his property therein.


                                          19
      The trial court’s denial of Appellee’s motion for instructed verdict based

upon the decedent’s testamentary capacity, the uncontroverted testimony of

witness Gus Brown and the will of the decedent itself are more than indicative that

the decedent had testamentary capacity and the court’s finding of fact almost eight

months post trial is in error.

      Finally, on the point of Wade Bedell’s testamentary capacity, Appellee’s

own witness, Joe Cervantes stated that even after 2005 he thought Mr. Bedell knew

what he was doing even and seemed normal to him.

[RR P 98 L 10-13]

Mr. Carter: Okay. Later on after 2005, did Mr. Bedell and Mr. Cervantes have a
dispute over the property?

A. No. Mr. Cervantes and I had a dispute over the three lots.

[RR P 106 L19-25]

Mr. Carter:         Okay. But was there any -- is there any doubt in your mind or
                    whether it was -- was there any equivocation from -- indicated
                    by Mrs. Bedell during that conversation to the extent that Mr.
                    Bedell didn't know what he was doing?

Mr. Cervantes:      I think he knew what he was doing because the way he talked to
                    me, he seemed normal to me, you know.


                APPELLANT’S POINT OF ERROR NUMBER FIVE

      The trial court erred in Finding of fact No. 9 wherein it stated, “ The
court further finds the competing Will contained no exordium clause”
intimating that such is required in Texas for a valid will.


                                         20
      An exordium clause is not required by Texas law for an instrument to be a

valid will. As previously stated in point one hereof Texas case law in this regard is

set forth in the 2001 Waco Court of Appeals case Cason v. Taylor, 51 S.W.3d 397

(Tex App Waco-2001). The court there held:

      “The standard way to revoke a will is by executing a new will that contains
      an expressed revocation clause, i.e., "I revoke all earlier wills and codicils."
      Burton v. Bell, 380 S.W.2d 561, 569 (Tex.1964). However, if a later will
      makes a complete disposition of the testator's property, it revokes all prior
      wills by implication. Lisby v. Richardson's Estate, 623 S.W.2d 448, 449
      (Tex.App.--Texarkana 1981, no writ); Baptist Foundation of Texas v.
      Buchanan, 291 S.W.2d 464, 472 (Tex.Civ.App. --Dallas 1956, writ ref'd
      n.r.e.)”

Here, the 2005 will [CR 13] makes a complete disposition of the Wade Bedell’s

property, and even absent an exordium clause revokes the 2003 will by

implication.

                APPELLANT’S POINT OF ERROR NUMBER SIX

       The trial court erred in Finding of fact No. 10 wherein it stated, “The
court further finds that the competing Will contains numerous unintelligible
handwritten interlineations and that no competent evidence of the date of the
execution or interlineations was adduced by the contestant. The court finds
that the competing Will contains numerous interlineations that were made
with different pens at different times. No competent evidence was offered
concerning the date(s) when the interlineations were made on the competing
will or the identity of the individual(s)who made the interlineations.”

      Granted, the 2005 will proffered by Appellant is out of the ordinary, having

been typed by an octogenarian with eyesight problems and enlarged at a copy shop

so that he could read it. There also appear on the will certain hand written


                                          21
unintelligible notations or interlineations but these things do not comport with the

provisions of Section 63 of the Texas Probate Code and are thus not capable of

constituting circumstances which cast suspicion upon it.

      In the case of Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App. Amarillo

1948), the will shows erasures and interlineations. The words 'Florence Russ

Wasson' and 'Minnie Russ Howard' are partially obliterated by ink and the word

'eight' is partially obliterated by pen scratches and above it is written the word

'seven,' and the word 'six' is written over the word 'seven.' There were other minor

changes. In a codicil dated December 9, 1935, the word 'seven' is partially

scratched out, and the word 'six' is written above it. There are some changes made

in two deeds attached to the will. The court held:

       “By these changes it can be seen that the testator was attempting to change
      his will. It is the law in this state that changes in the original will properly
      executed by the testator are ineffective, and that the will must be probated as
      originally written unless such changes were made with the formalities
      required in the making of a will. A will cannot be changed or revoked except
      in a manner provided by law. If the names of the legatees were obliterated
      by Mr. Russ, or someone under his direction, after the will was executed,
      such acts are futile.”

   In Simmons v. Gardner, 134 S.W.2d 338 (Tex.Civ.App. Fort Worth 1939),

subsequent to its execution, testatrix had made certain changes in her will, by

drawing a pencil line through some words and interlining other words and figures.

The application filed in the probate court sought to probate the will, not as

originally written and executed, but as modified and changed by the pencil marks

                                          22
and to probate the expressions found in the pencil changes as a codicil to the

original will. The court held:

      “To have granted the relief thus sought would have changed materially the
      bequests as originally made. The apparent defacement of the instrument, by
      the means mentioned, did not constitute a revocation of the will. It did not in
      any respect meet the statutory requirements which provide how a revocation
      may be made.”

 The rulings in Simmons and Pullen, supra mandate that the will of Wade Bedell

should be probated as originally written and the interlineations thereon ignored.

   The evidence here established that the will in question had not been revoked

and that there was no evidence of probative force to the contrary sufficient to raise

an issue of revocation. The will was produced in court and, although containing

certain writings and interlineations which did not comply with the Probate Code

requirements for revocation, it was therefore unattended by any circumstances

which would cast suspicion on it. Gus Brown testified that he witnessed the

execution and the said Wade Bedell and that being of sound mind at the time,

asked he, Mr. Cervantes and the Texas State Notary Public to witness his last will

and testament when signing it in the witnesses' presence on July 7, 2005. The

whole effect of Mr. Brown’s testimony is that the will was executed with all the

formalities and solemnities required by law unattended by any circumstances

whatsoever to cast any suspicion upon its validity or solemn execution. The

testimony of Gus Brown satisfied proponent's burden of proving that the will had



                                         23
not been revoked. As queried in McElroy v. Phink, supra, does the statute make it

incumbent upon the Appellant to go further, and offer additional evidence to prove

the negative, namely, that it has not been revoked in any of the methods provided

by law? Appellant suggests not. The will here having been established as having

been duly executed by the testator, and having been produced, unattended by any

circumstances which cast suspicion upon it, the presumption of the continuity of

the status applies, and makes a prima facie case as against a revocation.

        Therefore, Appellant proved, at the trial of this cause, that the Testator of

the proffered will had attained the age of eighteen years and was of sound mind as

required by §57 of the Texas Probate Code. The will proffered by Appellant was

in writing and signed by the testator in person. As the will was not wholly in the

handwriting of the testator, it was attested by two or more credible witnesses above

the age of fourteen years who subscribed their names thereto in their own

handwriting in the presence of the testator as required by §59(a) of the Texas

Probate Code. Appellant further as required by §88(b)(3) proved that the

proffered will was not revoked by the testator. Thus, the will proffered by

Appellant was in writing and executed with the formalities required by the Probate

Code to make it a valid will and pursuant to TEX PB. CODE ANN. §63 was all the

evidence necessary to prove the revocation of the 2003 proffered by Appellee. The

trial court’s Finding of Fact & Conclusions of Law thusly was in error.



                                          24
      The case of In Re Brown’s Estate, 507 S.W.2d 801, (Tex. Civ. App – Dallas

1974) wherein the Dallas Court of Appeals stated:

      “Our statutes do not define in so many words what form an instrument shall
      take before it becomes a will. A will is generally defined as an instrument by
      which a person makes a disposition of his property, to take effect after his
      death, and which by its own nature is ambulatory and revocable during his
      lifetime.”

citing numerous cases all the way back in Texas jurisprudence to Williams v.

Noland, 10 Tex.Civ.App. 629, 32 S.W. 328 (1895, writ ref'd). If a writing in

contains all of the factors above enumerated, the particular phraseology adopted by

the draftsman is of no consequence. In Ferguson v. Ferguson, 27 Tex. 339 (1864),

the Texas Supreme Court held:

      “However irregular it may be in form, or inartificial in expression, it is
      sufficient if it discloses the intention of the maker respecting the disposition
      of his property and that it is intended to take effect after his death, and is in
      its nature ambulatory and revocable during his life.”


              APPELLANT’S POINT OF ERROR NUMBER SEVEN

      The trial court erred in Finding of fact No. 11 wherein it stated, “The
contestant’s brother, Gus Brown, was unable to offer a date on which he
allegedly executed the competing Will.”

      As might be expected when Findings of Fact and Conclusions of Law

are finally filed almost eight months after trial, the trial judge obviously had a

lapse of memory on this point. The Reporters Record is quite clear regarding

Gus Brown’s ability to offer a date on which the 2005 will was executed during



                                          25
examination by Appellant’s attorney, John D. Wennermark, to wit:

[RR P35 L2-8]

Q. Now, on that will, there's a date written toward the bottom. See that date?
A. Uh-huh.
Q. Was that the date that he signed the will?
A. Sure. Seven -- two days after my birthday.
Q. Okay.
A. Seven July 05.

The trial court obviously is in error in his Finding of Fact No. 11.


                 APPELLANT’S POINT OF ERROR NUMBER EIGHT

      The trial court erred in Finding of Fact/Conclusion of Law No. 12
wherein it stated, “The court therefore finds and concludes that Wade Bedell
either revoked the competing Will, or alternatively, that Wade Bedell never
intended for the competing will to become effective.”

      As previously stated in Point One of this brief, TEX PB. CODE ANN. §63

states:
                “No will in writing, and no clause thereof or devise therein, shall be
                revoked, except by a subsequent will, codicil, or declaration in
                writing, executed with like formalities, or by the testator destroying or
                canceling the same, or causing it to be done in his presence.”
      As pointed out by the Fort Worth Court of Appeals in Simmons v. Gardner

id. the interliniations and defacement of the 2005 will did not constitute a

revocation of the will as it did not in any respect meet the statutory requirements

which provide how a revocation may be made.

          There simply is no evidence or testimony in the Reporter’s Record of this

trial that can remotely be considered sufficient to support the court’s alternative


                                            26
finding that Wade Bedell never intended for the 2005 will to become effective.

Why else on July 7, 2005, would Wade Bedell sign the will and have witnesses,

including a Notary Public available to witness its execution. Such finding flies in

the face of the testimony, evidence and logic.

                APPELLANT’S POINT OF ERROR NUMBER NINE

       The trial court erred in Conclusion of Law No. 14 wherein it stated,
“The court concludes that Deborah Bedell failed to offer sufficient evidence to
prove and establish all lawful elements of the July 7, 2005 competing will, that
the contestant further failed to prove with sufficient evidence that the 2003
will was revoked, and failed to show that the 2003 will was not a valid, lawful
will.”

       In the interest of brevity and judicial economy, with regard to the courts

conclusion that Appellant failed to offer sufficient evidence to prove and establish

all lawful elements of the July 7, 2005 will, Appellant would refer this court to her

Point of Error Number One and her discussion thereof. The discussion of that

point of error points out in uncontroverted testimony and evidence that the 2005

will complied with §57, §59(a) and §88(b) of the Texas Probate Code constitution

a valid will.

       Appellant would also point to her Point of Error Number One and her

discussion thereof to show that the 2003 will was revoked by implication by the 2005

will and that such revocation, as a matter of law, resulted in the 2003 instrument no

longer being a valid and lawful will.




                                           27
                                  CONCLUSION

      For all the foregoing reasons, Appellant, Deborah Bedell submits that the

Probate Court erred in granting its judgment that the will of her late husband,

proffered by her, be denied probate.

                                       PRAYER

      Deborah Bedell respectfully prays that the Probate Court’s judgment of

April 1, 2014, be reversed and that judgment be rendered in favor of Deborah

Bedell, admitting the will proffered by her in her Application for Probate of Will

and Letters of Administration With Will Annexed to probate. Alternatively

Deborah Bedell further prays the judgment be reversed and remanded for a new

trial. Deborah Bedell further prays that she recover her costs on appeal from

Robyn Zalewa and for all other relief to which she is entitled.

.                               Respectfully submitted,

                                LAW OFFICES OF JOHN D. WENNERMARK
                                1924 North Main Avenue
                                San Antonio, Texas 78212
                                (210) 226-6262 – Phone
                                (210) 225-1351 – Fax
                                johnwennermark@hotmail.com

                                By: /S/   John D. Wennermark
                                JOHN D. WENNERMARK
                                State Bar Number 21177000
                                Attorney for Appellant




                                          28
                     CERTIFICATE OF COMPLIANCE

       I, John D. Wennermark, attorney for Appellant, Deborah Bedell, certify that
this document was generated by a computer using Microsoft Word which indicates
that the word count of this document is 7,354 per Tex. R. App. P. 9.4(i)

                               /S/   John D. Wennermark

                         CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellant Deborah Bedell’s Brief
was served upon James W. Carter, IV, by fax transmission to (210) 222-0586 on
the 1Oth day of February, 2015.

                               /S/   John D. Wennermark
                                     JOHN D. WENNERMARK




                                        29
