

Opinion filed June 17,
2010
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-08-00290-CV
                                                    __________
 
                          IN
THE INTEREST OF THE ESTATE OF
                            
WILLIAM PITT REDUS, DECEASED

 
                                       On
Appeal from the County Court
 
                                                         Palo
Pinto County, Texas
 
                                                       Trial
Court Cause No. 8337
 

 
                                                                  O
P I N I O N
 
This is a will contest involving the proponents of two wills executed by
William Pitt Redus.  The trial court held that appellant, Richard Queen, lacked
standing and dismissed him as a party. We reverse.
I.  Background Facts
Appellee, David Elliott, filed an application to probate a will executed
by Redus in 2007 that named Elliott independent executor and sole beneficiary. 
Queen filed a will contest, alleging that the 2007 will was not executed with
the formalities required by law and that Elliott lacked testamentary capacity. 
Queen also filed an application to probate a will executed by Redus in 2005.  This
will named Queen independent executor, devised a house to Bruce M. Jost, and
left the remainder of Redus’s estate to Queen.  Elliott filed a motion to
dismiss, contending that Queen lacked standing.  The trial court held an
evidentiary hearing and granted Elliott’s motion. 
II.  Issues 
Queen challenges the trial court’s decision with two issues, contending
that the trial court erred by not preparing findings of fact and conclusions of
law and that the trial court erred by finding that he lacked standing.  Elliott
does not deny that findings of fact and conclusions of law were properly
requested but contends that, even if the trial court erred by not preparing
them, there is no harm because we “can simply take all of the testimony to be
true and determine from that testimony if [Queen] met his burden to prove
standing.”  We will, therefore, apply this presumption and address Queen’s
standing before considering whether the trial court erred by not preparing
findings of fact and conclusions of law.
III.  Standing 
A person must have an interest in an estate to have standing to file a
will contest. Tex. Prob. Code Ann.
§ 10 (Vernon 2003).  Tex. Prob. Code
Ann. § 3(r) (Vernon Supp. 2009) defines “[i]nterested persons” as:
[H]eirs, devisees,
spouses, creditors, or any others having a property right in, or claim against,
the estate being administered; and anyone interested in the welfare of an
incapacitated person, including a minor.
 
Limiting will
contestants to interested persons reflects Texas’s policy to prevent those who
have no interest in a decedent’s estate from intermeddling with its
administration.  Womble v. Atkins, 331 S.W.2d 294, 297 (Tex. 1960). 
Thus, when called upon to do so, and in a separate hearing in advance of a
trial of the issues affecting the validity of the will, a potential contestant
must prove its interest in the estate.  Id. at 297-98.  
            Elliott
acknowledges that a beneficiary under a prior will would qualify as an
interested person and, therefore, have standing.  But, Elliott contends that
Queen failed to prove that Queen was a beneficiary in a valid will.  First,
Queen did not introduce into evidence the 2005 will at the in-limine hearing;
second, Queen did not satisfy the requirements for probating a missing will;
and third, Queen failed to overcome the presumption of revocation.  Elliott has
correctly identified several obstacles to Queen’s application, and Queen’s lack
of effort to locate the original 2005 will is disconcerting.[1]
 However,  Elliott is commingling the issues decided in an in-limine hearing
with those decided at trial. 
            Texas
courts have long recognized a distinction between the issues addressed in a
hearing to determine standing and the issues decided at a trial on the merits. 
See, e.g., Baptist Found. of Tex. v. Buchanan, 291 S.W.2d 464 (Tex. Civ.
App.—Dallas 1956, writ ref’d n.r.e.).  The Baptist Foundation filed an application
to probate a 1951 will that named it as a beneficiary.  Buchanan filed an application
to probate a 1954 will.  Buchanan then successfully challenged the Foundation’s
standing.  Id. at 468.  The Dallas court reversed, finding that the
trial court had considered issues beyond the scope of a standing challenge. 
The court held that, when a contestant’s standing is challenged, the in-limine
hearing is limited to a determination of the contestant’s justiciable interest
in the litigation and that this is distinct from the ultimate substantive
issues.  Id. at 469.  This, the court found, meant that issues such as
the validity of the 1951 will or its subsequent revocation were beyond the
scope of the in-limine hearing.  Id. at 470; see also Abbott v. Foy,
662 S.W.2d 629, 632 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.)
(contestant’s entitlement to a share of the estate, which depended upon the
validity of the wills in question, was to be decided at a trial on the merits and
not at an in-limine hearing on standing).[2]
Queen
testified at the in-limine hearing that he was a beneficiary of the 2005 will
and that he had offered it for probate.  Queen did not tender a copy of the 2005
will into evidence, but his application to probate that will had been
previously filed in the same cause number and is included in our record.  Kenneth
Tarlton testified that he is an attorney in Mineral Wells, that he represented
Redus, and that he drafted five wills for him.  Tarlton recalled preparing “the
will for Mr. Redus in regards to Mr. Queen.”  Tarlton described his normal
process for preparing a will and testified that it was followed in this
instance.  Kathleen Suzanne Ringo also testified.  She worked with Tarlton and
was shown a copy of the will attached to Queen’s application for probate.  She
recalled the will and confirmed that she witnessed it.  If we presume that this
testimony is truthful, Queen has established an interest in Redus’s estate and,
therefore, his standing.
Elliott
argues that finding Queen has standing effectively eliminates any burden of
proof because contestants with no valid interest in the estate can maintain a
will contest without presenting any evidence other than their own testimony.  If
Queen had presented no more than his own testimony that a will existed and that
he was a beneficiary of that will, Elliott’s concern would be well taken.  See
A&W Indus., Inc. v. Day, 977 S.W.2d 738, 742 (Tex. App.—Fort Worth
1998, no pet.) (“allowing uninterested strangers to interfere in the
administration of a decedent’s estate by merely alleging a factual scenario
that, if true, would qualify them as ‘interested persons’ . . .  is repugnant
to the public policy of this state”).  But Queen’s evidence – brief to be sure –
was more than his bare testimony.  A copy of the 2005 will was before the court
as part of his application for probate, and the attorney who prepared the
original and one of the will’s witnesses identified it.  If the 2005 will is
Redus’s last valid will, Queen has a pecuniary interest in the estate.  Queen’s
evidence is far from sufficient to probate the copy of the 2005 will he
attached to his application, but he was not required to meet that burden at the
in-limine hearing.  See Abbott, 662 S.W.2d at 632 (“[i]n showing an
interest by reason of a prior will, it is not necessary to develop facts
necessary to entitle the will to probate”).
Elliott
acknowledges that Queen was not required to prove all things necessary to admit
the 2005 will to probate but then spends significant time pointing out the evidence
necessary to probate the will that Queen failed to offer at the in-limine
hearing.  In fact, Elliott does not concede any element of proof that Queen
would need at trial but would not need at an in-limine hearing.  Elliott’s
position would eliminate any practical distinction between Queen’s standing and
his right to recover.  Queen’s burden was to show that he was named as a
beneficiary in a testamentary instrument executed with the formalities required
by law.  Hamilton v. Gregory, 482 S.W.2d 287, 289 (Tex. Civ. App.—Houston
[1st Dist.] 1972, no writ).  Whether he can meet his burden to probate that
will is a different issue.  
The
trial court erred by finding that Queen lacked standing; therefore, Issue Two
is sustained.[3]
This holding makes it unnecessary for us to address Queen’s first issue.
IV.  Holding
The judgment of the trial court is reversed, and judgment is rendered
that Queen has standing.  This case is remanded to the trial court for further
proceedings consistent with this holding.
 
                                                                                    RICK STRANGE
                                                                                    JUSTICE
 
June 17, 2010
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.




                [1]Redus passed away on June 11, 2007.  Elliott filed his
application for probate on June 18, 2007.  The in-limine hearing was held over
one year later on July 15, 2008.  Queen testified that to date he had made no
effort to try to locate the original 2005 will.  Queen’s counsel did establish
that he sent the attorney who prepared the 2005 will a subpoena duces tecum
asking for all documents related to Redus but that this did not recover the
original because counsel did not have it.
 


                [2]Elliott argues that Foy stands only for the proposition
that the appellant’s amended pleading was timely filed and, therefore, that he
had a right to present evidence at an in-limine hearing.  Elliott is correct
that the Houston court was concerned with the relation back doctrine, but the
court’s discussion of the separation of issues to be decided at the in-limine
hearing and at the final trial is informative and is consistent with the Dallas
court’s analysis in Baptist Foundation, 291 S.W.2d at 469-70.


                [3]We hold only that Queen has established standing.  We
express no opinion on any of the issues raised in Elliott’s summary judgment
motion or on any other substantive issue.


