AFFIRMED and Opinion Filed December 21, 2018




                                                      S
                                          Court of Appeals
                                                          In The


                                   Fifth District of Texas at Dallas
                                                    No. 05-17-01167-CV

                IN THE ESTATE OF MELISSA WAGNER OSBORNE, DECEASED

                                     On Appeal from the Collin County Probate
                                               Collin County, Texas
                                       Trial Court Cause No. PB1-1506-2016

                                         MEMORANDUM OPINION
                                    Before Justices Francis, Schenck, and Richter1
                                             Opinion by Justice Richter
          This appeal involves a will contest. Appellant Joann Rubio was the caretaker for Melissa

Wagner Osborne, the deceased, and appellee Joseph Edward Osborne, Jr. was Melissa’s husband

at the time of her death. The will stated Melissa was bequeathing her house and all her personal

property to appellant, who offered the will for probate. A jury determined Melissa lacked

testamentary capacity to sign the will, and the trial court issued a final judgment that denied the

will’s admission to probate. In a single issue, appellant contends the evidence is legally and

factually insufficient to support the jury’s finding that Melissa lacked testamentary capacity. We

affirm the trial court’s final judgment.




   1
       The Hon. Martin Richter, Justice, Assigned
                                           BACKGROUND

        Melissa and Joseph were married in 1973. Joseph, who was in the rock band Lynyrd

Skynyrd, survived a plane crash in 1977 that killed several bandmates. Joseph and Melissa built

their house in McKinney in 1987. Although they divorced in 2002, Joseph continued living in the

home with Melissa. Appellant became Melissa’s caregiver on a part-time basis in 2013. In

January, 2014, appellant began taking care of Melissa’s needs full time. On February 24, 2014,

Melissa wrote out a will that stated she wanted to leave her house, furnishings, and personal

property to appellant. The will was signed and witnessed the next day, February 25, 2014.

        Melissa died on September 14, 2016. After Melissa’s death, appellant filed an application

to probate the will and for issuance of letters of independent administration. Joseph filed his

opposition to probate of the will and an application to determine heirship, alleging that he and

Melissa continually lived as husband and wife after their divorce and, thus, he was entitled to 100%

of Melissa’s property. Appellant filed a motion for no-evidence summary judgment. The trial

court denied appellant’s motion for no-evidence summary judgment and proceeded with a jury

trial in June, 2017.

                                        Evidence Presented

        Appellant testified she was employed by Outreach Health Services and met Melissa in

January 2013 when she began as a part-time caregiver. Appellant became Melissa’s full-time

caregiver in January 2014. Appellant provided care to Melissa from Monday through Friday. She

testified she also spent other times with Melissa, including going out to eat, getting together on the

weekends, and celebrating birthdays and holidays together. Appellant testified that although

Melissa had several physical ailments, she did not believe Melissa had any mental or psychological

impairment. Appellant acknowledged that Joseph lived in the home with Melissa, but insisted he

stayed “on the other side of the house” while Melissa stayed in the master bedroom.

                                                 –2–
       Appellant testified that about two weeks before Melissa wrote out the will, Melissa stated

that she was giving her estate to appellant because “she did not want Joseph to have it.” According

to appellant, Melissa fully understood she was disposing of her property through the will upon her

death. The day after Melissa wrote out her will, appellant took Melissa to a bail bond company to

get the will notarized “so everything would be legal.” Appellant testified at no time while caring

for Melissa did she think Melissa was mentally incapacitated or unable to make judgment calls or

decisions.

       On cross-examination, appellant testified she began working full time with Melissa on

January 13, 2014 because Maria Vasquez, the previous caregiver, had left. Appellant admitted the

will was written and signed one month after she began working full-time for Melissa, and she

acknowledged that a previous will executed in 2008 that left Melissa’s house and all of Melissa’s

property to the previous caregiver, Maria Vasquez, was being voided by the February 2014 will.

Appellant testified Melissa took several daily medications, but she insisted that at no time was

Melissa mentally incapacitated.

       Lindsey Pendleton, a licensed vocational nurse in Melissa’s physician’s office, testified

Melissa had an “intracutaneous fistula” on her stomach that resulted in her having to have a

colostomy bag. Some days Melissa could walk and other days she would be in a wheelchair.

Pendleton testified Melissa was always in “good spirits” whenever she came to the doctor’s office,

which was every few months, and usually appellant was with her. Pendleton testified Joseph

brought Melissa to the doctor’s office “a few times.” Pendleton said she was not aware of any

mental, psychological, or psychiatric problems affecting Melissa. Pendleton testified she believed

that in 2014, the decedent had sufficient mental ability to understand she was making a will and

the property she possessed.




                                               –3–
       On cross-examination, Pendleton testified Melissa took narcotic drugs for pain

management, including Oxycontin, Hydrocodone, Xanax, and Prozac. Pendleton said that when

she began as a nurse in the doctor’s office, she would characterize Melissa as being “very sick, she

had her good days and bad days, but her diagnoses remained the same until her death.” Pendleton

testified Melissa’s illnesses included Type 2 diabetes, cancer, Cushing’s disease, hernia repair

surgery, abdominal hysterectomy surgery, gastric bypass surgery, as well as obesity. Pendleton

did not know what specific drugs Melissa was taking in February 2014 when the will was written

and signed, but she believed that none of Melissa’s physical ailments impaired her ability to make

decisions. Pendleton also testified that after Melissa’s death, appellant became a regular patient

with Melissa’s doctor.

       Victoria Bean testified she had known Melissa for over thirty years and visited with her at

least twice a month. Bean said that most of Melissa’s life centered on her medical care, and that

Melissa was “very ill and suffering.” Bean testified Melissa was “strong-willed,” “mentally

sharp,” “knew the extent of her property,” and had “sufficient mental ability to make her will.”

Bean testified Melissa told her about the will and stated that appellant was the beneficiary of her

estate and she wanted appellant to get all of her property.

       On cross-examination, Bean testified she knew Melissa’s 2008 will had a different

caretaker listed as the beneficiary of Melissa’s house and personal property. Bean said she and

appellant wrote out Melissa’s obituary that stated appellant and appellant’s family was Melissa’s

“adopted family.” Bean further testified that after Melissa’s death, she went to the house to see

Joseph, who told her that he was having some financial difficulties. Bean offered to buy two of

Joseph’s gold records he had received as member of Lynyrd Skynyrd. She gave Joseph $400 for

the two records.




                                                –4–
       Joseph testified he and Melissa divorced only because they had monetary problems and

she needed to “get her insurance.” After the divorce, he continued living in the home and they

resumed as “husband and wife.” Joseph testified Melissa “took a lot of medication” and “that had

an effect on her thinking.” Joseph said it “was possible” that Melissa lacked mental capacity to

draft a will in 2014. Joseph further testified Melissa had a history of “kidney cancer, Grave’s

disease, diabetes, and hypertension,” and she took “some psychiatric medicines” for anxiety and

antidepressants that included Xanax, Prozac, and Oxycontin.

       After deliberation, the jury rendered the following verdict: (1) Melissa did not have

testamentary capacity to sign the document dated February 24, 2014 and February 25, 2014; (2)

the document dated February 24, 2014 and February 25, 2014 was wholly in Melissa’s handwriting

and signed by her; (3) Melissa did not sign the document as a result of undue influence; (4) Melissa

did not sign the document as a result of fraud; and (5) Melissa and Joseph were informally married

after the date of their divorce. On June 29, 2017, the trial court issued its Final Judgment that

stated that the jury found in favor of Joseph and against appellant, that Melissa died intestate, that

Joseph was the surviving spouse of Melissa, and that the will was denied admission to probate.

Appellant then moved to disregard the jury findings and modify the judgment or, alternatively, a

moved for new trial. The trial court denied the motion for new trial. Subsequently, this Court was

notified that appellee Joseph Edward Osborne, Jr. died of natural causes on April 9, 2018.

                                                ISSUE

       In a single issue, appellant contends the evidence is legally and factually insufficient to

support the jury’s finding that Melissa lacked testamentary capacity. Appellant asserts she

provided competent evidence to establish that Melissa possessed testamentary capacity when she

executed her will. Appellant argues that although Melissa had physical ailments and took




                                                 –5–
medications, those facts do not prove a lack of testamentary capacity at the time Melissa wrote out

and signed her will.

                                        APPLICABLE LAW

       As the proponent of the February 2014 will, appellant had the burden to prove that Melissa

had testamentary capacity on February 24, 2014 and February 25, 2014. Croucher v. Croucher,

660 S.W.2d 55, 57 (Tex. 1983). When a party attacks the legal sufficiency of an adverse finding

on an issue for which she had the burden of proof, she must demonstrate on appeal that the

evidence establishes, as a matter of law, all vital facts in support of the issue. Id. at 58; Dow

Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Under the requisite two-prong analysis,

the reviewing court must first examine the record for evidence and inferences that tend to support

the finding, disregarding all evidence and inferences to the contrary. Dow Chemical, 46 S.W.3d

at 241. If there is no evidence to support the finding, then the entire record must be examined to

determine if the contrary proposition is established as a matter of law. Dow Chemical, 46 S.W.3d

at 241. The reviewing court must assume the jury credited any testimony favorable to its verdict,

and disbelieved any contrary testimony, if a reasonable person would do so. City of Keller v.

Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

       When a party attacks the factual sufficiency of an adverse finding on an issue on which she

has the burden of proof, she must demonstrate on appeal that the adverse finding is against the

great weight and preponderance of the evidence. Croucher, 660 S.W.2d at 58; Dow Chemical, 46

S.W.3d at 242. The reviewing court considers and weighs all of the evidence to determine whether

the evidence is so weak or the finding is “so against the great weight and preponderance of the

evidence that it is clearly wrong and unjust.” Dow Chemical, 46 S.W.3d at 242; see also Golden

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761–62 (Tex. 2003). It is exclusively within the




                                               –6–
jury’s province to resolve conflicts in the evidence and to determine the credibility of the witnesses

and the weight to be given their testimony. Golden Eagle, 116 S.W.3d at 761.

       A testator has testamentary capacity when she has sufficient mental ability to understand

she is making a will, the effect of making a will, and the general nature and extent of her property.

In re Estate of Blakes, 104 S.W.3d 333, 336 (Tex. App.—Dallas 2003, no pet.). In a will contest,

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

Id. However, evidence of the testator’s state of mind at other times can be used to prove her state

of mind on the day the will was executed provided the evidence demonstrates a condition affecting

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

                                            DISCUSSION

       The jury heard testimony from several witnesses who said they believed Melissa had

testamentary capacity at the time she wrote out and signed her will. Appellant said Melissa never

showed any signs of mental incapacity for the three years she cared for her. Bean, who was

Melissa’s friend of thirty years, said Melissa was a “strong-willed person” and was “mentally

sharp” the entire time she knew her. And Pendleton, the nurse in Melissa’s doctor’s office, said

Melissa “at no time” showed any type mental incapacity.             Both appellant and Pendleton

acknowledged that Melissa had numerous illnesses, surgeries, and took narcotic medications.

However, they both insisted that none of Melissa’s ailments or medications impaired her ability to

make decisions.

       The jury also heard Joseph’s testimony that he believed it “was possible” that the

“psychiatric medications” Melissa took “had an effect on her thinking.” Medical records admitted

into evidence spanning from 2007 to 2016 detailed many of Melissa’s ailments. While Pendleton

could not say what drugs Melissa was taking in February 2014, she did testify about Melissa’s




                                                 –7–
many ailments and that Melissa was “very sick.” Both appellant and Joseph said the drugs Melissa

was consistently taking included Oxycontin, Xanax, Prozac, and Hydrocodone.

       It is the jury’s exclusive province to determine the credibility of the witnesses and the

weight to be given their testimony, and we do not substitute our judgment for that of the jury. See

Bright v. Addison, 171 S.W.3d 588, 595–96 (Tex. App.—Dallas 2005, pet. dism’d). A reasonable

jury could have determined that the types of drugs taken by Melissa were powerful enough to alter

a person’s mental capacity. A reasonable jury could have determined Melissa lacked testamentary

capacity in light of the fact that she had issued a 2008 will leaving all her property to her previous

caregiver, Maria Vasquez. A reasonable jury could have disbelieved appellant’s testimony given

the fact that one month after appellant began working fulltime for Melissa, Melissa wrote out a

new will that voided the 2008 will. Moreover, the jury received evidence that showed appellant

listed herself as Melissa’s daughter, although she was not related to Melissa in any way, on the

death certificate of Melissa and on the order for cremation of Melissa. Appellant also set up a

“GoFundMe” page on the internet that stated she had lost her “best friend/mom.”

       The jury also could have reasonably discounted Pendleton’s testimony because appellant

was currently a patient with Melissa’s doctor, where Pendleton was employed. Likewise, the jury

could have reasonably discounted Bean’s testimony because Bean helped appellant write Melissa’s

obituary that named appellant and appellant’s family as Melissa’s “adopted family.” See City of

Keller, 168 S.W.3d at 819; Golden Eagle, 116 S.W.3d at 761.

       We conclude the jury’s findings that Melissa lacked the testamentary capacity at the time

the will was written and signed is not against the great weight and preponderance of the evidence

as to be clearly wrong and unjust. See Golden Eagle, 116 S.W.3d at 761, Croucher, 660 S.W.2d

at 57. We further conclude the evidence is both legally and factually sufficient to support the




                                                 –8–
jury’s finding that Melissa lacked testamentary capacity at the time the will was written and signed.

See Golden Eagle, 116 S.W.3d at 761; Dow Chemical, 46 S.W.3d at 241–42.

       We affirm the trial court’s final judgment.




                                                     /Martin Richter/
                                                     MARTIN RICHTER
                                                     JUSTICE, ASSIGNED

171167F.P05




                                                –9–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE ESTATE OF MELISSA                            On Appeal from the Collin County Probate,
 WAGNER OSBORNE, DECEASED                            Collin County, Texas
                                                     Trial Court Cause No. PB1-1506-2016.
 No. 05-17-01167-CV                                  Opinion delivered by Justice Richter.
                                                     Justices Francis and Schenck participating.


     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Joseph Edward Osborne, Jr. recover his costs of this
appeal from appellant Joann Rubio.


Judgment entered December 21, 2018.




                                              –10–
