Opinion filed May 9, 2013




                                       In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-11-00131-CV
                                     __________

                IN THE MATTER OF THE ESTATE OF
                  WILLARD O. ALLEN, DECEASED


                     On Appeal from the 42nd District Court
                            Coleman County, Texas
                          Trial Court Cause No. 4949


                                   OPINION
      This is an appeal of an order admitting a will to probate as a muniment of
title. Appellant, Willard Miles Allen, objected to the probate of his father’s will,
alleging that his mother, Jo Ann Allen, was in default for failing to offer the will to
probate within the four-year time period prescribed by TEX. PROB. CODE
ANN. § 73(a) (West 2003). In a bench trial, the trial court found that Jo Ann Allen,
Appellee, “was not in default in failing to present the [will] for probate within the
four years.” Id. The trial court admitted the will to probate.
      In a single issue, Appellant contends that the evidence was insufficient to
support the trial court’s finding and conclusion that Appellee was not in default for
failing to present the will for probate during the four-year statutory period
immediately following the testator’s death.       We note that Appellant does not
challenge the trial court’s other findings of fact. Appellant requests that we render
judgment, not remand the case; therefore, Appellant’s contention is that the
evidence was legally insufficient to support the trial court’s judgment. We affirm.
                                 Background Facts
      Appellee, Jo Ann Allen, married Willard O. Allen in 1949. They were
married for fifty-six years prior to his death and had four children: Willard Miles
Allen, Tom Henry Allen, William Russell Allen, and Melody Jo Allen. Willard O.
Allen left a valid will dated April 22, 1976, naming Appellee as Independent
Executrix and leaving Appellee all of his property, community or separate.
      Within a month of her husband’s death in 2005, Appellee met with a local
attorney in Coleman County. Because there were no debts or liens, he advised her
that she had the option of probating the will or executing an affidavit of heirship.
As a result of their discussion, Appellee understood that the two options would
lead to the same result, that she would inherit all of her husband’s property under
either option, and that filing the affidavit would be less expensive and could be
done quickly. Appellee testified that they did not discuss whether her husband left
community or separate property and that, at the time of the meeting, she did not
know the law treated community and separate property differently. She
remembered that the lawyer told her that she “could always probate [the will] later
if she needed to.” Appellee said she chose the affidavit because she just “wanted
to get it done” so she could make a will to leave everything to her children. She
knew that her husband and his brother had filed an affidavit of heirship with
respect to their father’s property and that she and her brother had filed one for their
father’s property. Appellee discussed her choice with her children; they did not
object.
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      Appellee was eighty-one years old at the time of the hearing on her
application to probate the will as a muniment of title. Appellee testified that she
remembered being anxious to have the estate settled but that time and money were
not factors; she just wanted the estate settled quickly so she could make a new will.
The lawyer’s secretary, Mary Knox, recalled that time was an issue for Appellee
and that there was some conversation about the affidavit of heirship being less
expensive than probate. Knox prepared the affidavit and said that she did not have
any concerns about a conflict between the affidavit and the will.
      At the time of his death, Willard O. Allen owned two tracts of land that were
his separate property: a 65.14-acre tract and a 188-acre tract. In 2010, Appellee
had a dispute with her son, Appellant, who was keeping livestock on the property.
Appellee asked Appellant to remove his livestock to allow her to lease the
property. He refused. Appellee then consulted another Coleman attorney who
advised her that there was a problem with the affidavit of heirship. TEX. PROB.
CODE ANN. § 38(b) (West 2003), dealing with the intestate succession of property
other that community property, provides that, in situations where there are
surviving children, the surviving wife is entitled to a life estate in one-third of the
land of the intestate, with remainder to the child or children. Within a month of
receiving this advice, Appellee, on April 8, 2010, filed her husband’s Last Will and
Testament for probate in Coleman County. Her husband died on August 9, 2005.
      Appellant was the only child who contested the application to probate the
will. His opposition was based on the four-year limitation period for filing a will
for probate. PROB. § 73. He contended that his mother was in default for failing to
file the will within the period. The other three children filed affidavits stating that
they did not object to Appellee filing the will for probate more than four years after
their father’s death.


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       The affidavit of heirship referred to the two tracts of land, but did not
describe the property as community or separate. The affidavit recited that Willard
Orville Allen “died leaving a written will” and attached a copy of the will to the
affidavit.
       Appellee’s attorney acknowledged at trial that decedent’s separate property
would pass differently under the descent and distribution laws of Texas than under
the will that left all property to his wife. He admitted that, if he had known the two
tracts were separate property, he would have probated the will. Appellee testified
that she had no legal training or background, that she trusted her lawyer to give her
good advice, that she understood that she inherited all her husband’s property
whether the will was probated or an affidavit of heirship was filed, and that she
could file the will for probate later if necessary. Appellee testified that it was
important to her to inherit the property because it was a savings account that she
might need.
       Appellant testified that his mother told him that she wanted to file an
affidavit of heirship because she and her brother had done that for their father’s
property, her husband and his brother had done the same for their father’s property,
and the affidavit would cost less money than probating the will. Appellant told his
mother that was alright with him.       His mother expressed to him that getting
everything done quickly was a concern. Appellant testified that he did not think
that Appellee was concerned about whether some of the property went to her and
some to the children because she told him that the property was going to the four
children.
       At the end of the bench trial, the trial court ruled that Appellee was not in
default for failing to offer the will for probate within the four-year period. The
trial court filed findings of fact and conclusions of law that included the following
findings: that Jo Ann Allen had sought the advice of an attorney concerning the
                                          4
estate of Willard O. Allen; that the attorney drafted the affidavit of heirship that did
not state whether the property was separate or community but referred to and
attached a copy of the will; that Jo Ann Allen relied on the legal advice of the
attorney and erroneously believed that the affidavit of heirship was sufficient to
transfer all property of the decedent to her; that, once her son claimed ownership in
the real property, Jo Ann Allen “timely sought advice from another attorney as to
the ownership” and was advised that the will should have been probated; and that,
once advised of the need for probate, she was diligent in offering the will for
probate. The trial court concluded that Appellee was not in default for failing to
offer the will for probate as a muniment of title within four years of her husband’s
death.
                                  Standard of Review
         We review sufficiency challenges to a trial court’s findings of fact under the
same standards that we use to review a jury’s findings. Catalina v. Blasdel, 881
S.W.2d 295, 297 (Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791,
794 (Tex. 1991). In analyzing a legal sufficiency challenge, we must determine
whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). We must review the evidence in the light most favorable to the
challenged finding, crediting any favorable evidence if a reasonable factfinder
could and disregarding any contrary evidence unless a reasonable factfinder could
not. Id. at 821–22, 827. We may sustain a no-evidence or legal sufficiency
challenge only when (1) the record discloses a complete absence of a vital fact,
(2) the court is barred by rules of law or evidence from giving weight to the only
evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital
fact is no more than a mere scintilla, or (4) the evidence conclusively establishes
the opposite of a vital fact. Id. at 810.
                                            5
                                      Analysis
      Section 73(a) of the Texas Probate Code provides, in relevant part, as
follows:
             No will shall be admitted to probate after the lapse of four years
      from the death of the testator unless it be shown by proof that the
      party applying for such probate was not in default in failing to present
      the same for probate within the four years aforesaid.

      As used in Section 73(a), “default” means the “failure to probate a will
because of the absence of reasonable diligence on the part of the party offering the
instrument.” In re Estate of Perez, 324 S.W.3d 257, 262 (Tex. App.—El Paso
2010, no pet.); In re Estate of Cornes, 175 S.W.3d 491, 495 (Tex. App.—
Beaumont 2005, no pet.); Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex.
App.—Dallas 2003, pet. den’d); Chovanec v. Chovanec, 881 S.W.2d 135, 137
(Tex. App.—Houston [1st Dist.] 1994, no writ); Kamoos v. Woodward, 570
S.W.2d 6, 8–9 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).
      Whether the proponent of a will is in default is normally a fact issue.
Chovanec, 881 S.W.2d at 137; Kamoos, 570 S.W.2d at 8; Owen v. Felty, 227
S.W.2d 379 (Tex. Civ. App.—Eastland 1950, writ ref’d). The case law in Texas is
quite liberal in permitting a will to be offered as a muniment of title after the
statute of limitations has expired upon the showing of an excuse by the proponent
for the failure to offer the will earlier. Poppe v. Poppe, No. 01-08-00021-CV,
2009 WL 566490 (Tex. App.—Houston [1st Dist.] Mar. 5, 2009, no pet.);
Chovanec, 881 S.W.2d at 137; Kamoos, 570 S.W.2d at 8. As the court stated in
the early case of Armstrong v. Carter, 291 S.W. 626, 627 (Tex. Civ. App.—Waco
1927, no writ):
      Clearly, the intention of the Legislature was to lodge with the trial
      court or jury the power to determine as a question of fact, where there
      is any evidence raising the issue, whether there was a default. The

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      tendency of our courts has been from its earliest decisions to permit
      wills to be filed after the four-year period, where there is any evidence
      of a probative force which would excuse the failure to offer the will
      sooner. Long v. Todd (Tex. Civ. App.) 252 S.W. 327; Michaelis v.
      Nance (Tex. Civ. App.) 184 S.W. 785 (writ refused); House v. House
      (Tex. Civ. App.) 222 S.W. 322; Ochoa v. Miller, 59 Tex. 460; Ryan v.
      T. & P. Ry. Co., 64 Tex. 239.

      The court in Chovanec, reversing a summary judgment, held that the
evidence raised a genuine issue of material fact as to whether the decedent’s
husband was in default for failing to timely offer her will for probate within four
years of her death; he offered the will for probate thirteen years after her death.
The court reasoned that the summary judgment evidence showed that the husband
was not aware that it was necessary to probate the will, that he did not believe
probate was necessary because he inherited everything from his wife, that he
believed the land was his separate property, and that he was unaware of any title
problems during a period when three successive mineral leases had been executed
on the land. Chovanec, 881 S.W.2d 135.
      In Kamoos, the court affirmed the judgment of the trial court that found the
testator’s wife was not in default for failing to timely offer the will for probate.
The wife had limited financial resources and did not believe it was necessary to
offer the will for probate due to the nature of the property; she thought the estate
consisted entirely of community property.       When she became aware that her
husband had inherited a royalty interest, she filed an application to probate the will
within a few weeks of being contacted by an oil company. There was a lapse of
approximately five years after her husband’s death before the will was offered for
probate. Kamoos, 570 S.W.2d at 8–9. Kamoos stands for the proposition that a
proponent’s belief that probate was unnecessary, coupled with a concern over the



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cost of probate, can constitute legally and factually sufficient evidence to support
admitting a will to probate after four years.
       Similar to the facts in Kamoos, the court in Perez found that the wife’s
limited financial resources and belief that probate was unnecessary were legally
sufficient to uphold the trial court’s conclusion that the wife was not in default for
failing to present the will for probate within four years after her husband’s death.
She testified that she did not know that there was a time limit in which to probate a
will and that she thought her husband’s lawyer had taken care of the matter
regarding the will. Perez, 324 S.W.3d at 263.
      There are a number of cases where the courts have found that evidence that a
proponent relied on counsel’s advice was sufficient to support a finding that the
proponent was not in default or to raise a material fact question of whether the
proponent was not in default. See, e.g., Perez, 324 S.W.3d at 263 (wife found not
in default); Poppe, 2009 WL 566490, at *5 (appellate court reversed summary
judgment and remanded for trial); Norrell v. Norrell, No. 05-96-00441-CV, 1997
WL 657088, at *2 (Tex. App.—Dallas Oct. 23, 1997, no pet.) (not designated for
publication) (appellate court reversed summary judgment and remanded for trial).
      The wife in Perez took the will to an attorney who suggested that they file an
affidavit of heirship instead of probate. The attorney prepared the affidavit of
heirship and sent it to the eldest child with a special warranty deed for signature;
however, the child did not respond. The court of appeals affirmed the trial court’s
decision to admit the will stating, “Like the will proponent in Kamoos, Mrs. Perez
believed it was unnecessary to probate the will; she did not know there was a time
limit to probate a will. . . . She also believed [her attorney] had taken care of the
matter regarding the will.” Perez, 324 S.W.3d at 263.
      Citing and discussing Chovanec, the court in Poppe pointed out that the
proponent stated that she was not aware of the necessity to probate the wills
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because a letter from her counsel showed that she thought she could handle the
estates without the necessity of probate. Poppe, 2009 WL 566490, at *5. In
Norrell, the proponent, within a few months of her husband’s death, met with an
attorney to discuss probating her husband’s will. She paid the attorney a retainer
and believed he would take care of the matter. Although the attorney drafted an
application for probate, the will was never probated. The attorney testified that his
client refused to pay him and that he mailed the file back to her. Seven years later,
she attempted to probate the will as a muniment of title.
      The Norrell court cited Chovanec and Kamoos for two propositions:
(1) Texas case law leans heavily in favor of allowing a will to be offered as a
muniment of title where the proponent offers a reasonable excuse for failing to
probate the will during the statutory period and (2) the proponent’s belief that
probate was unnecessary has been found sufficient. The Norrell court reversed the
summary judgment in favor of the opponent to probate, reasoning as follows:
      A belief that probate has been accomplished is certainly as reasonable
      an excuse for inaction as a belief that probate is unnecessary.
      Although it may have been naive for appellant to believe the will had
      been probated without hearing anything definitive from her attorney,
      as the cases cited above demonstrate, lack of knowledge regarding the
      probate process does not amount to an absence of reasonable diligence
      as a matter of law.

Norrell, 1997 WL 657088, at *2.
      The trial court, as factfinder, found that Appellee relied on the advice of the
first Coleman attorney, believed that the affidavit of heirship transferred all
property to her the same as the will did, and believed that probate proceedings
were unnecessary. Like the proponents in Perez and Norrell, she believed that
everything that needed to be done had been done. Like the proponent in Perez, she
did not know there was a time limit for offering a will to probate; she testified that


                                          9
the attorney told her they could probate the will later if necessary. Supporting her
beliefs was the fact that the affidavit of heirship recited that Willard O. Allen left a
will, and a copy of the will was attached to the affidavit. 1 Appellee was seventy-
five years old when her husband died in 2005; she had no education or background
in legal matters. Her attorney and his secretary, Knox, testified that Appellee
wanted the estate settled “as quickly as possible” and inexpensively. Appellee said
that she wanted it done quickly so that her attorney could draft a new will for her.
Upon learning of the problem with the affidavit of heirship, Appellee acted
promptly in filing an application to probate the will; the application was filed four
years and eight months after her husband’s death. The evidence was legally
sufficient to sustain the trial court’s conclusion that Appellee was not in default in
not probating the will.
        Because the issue of whether a proponent is in default is a question of fact
rather than a question of law, the cases must be analyzed in terms of their facts.
Appellant cited cases where courts have stated that a family agreement, by itself,
not to probate a will does not justify late admission to probate. But in each case,
there were other facts. In Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App.—Tyler
1974, no writ), the court placed considerable emphasis on the long lapse of time:
the proponent was informed of the will’s existence seventeen days after the
expiration of the four-year period after the testator’s death, yet she waited twenty-
nine years before filing the will for probate. In In re Estate of Rothrock, 312
S.W.3d 271, 273, 275 (Tex. App.—Tyler 2010, no pet.), the court pointed out that
the proponent of the will was, by his own admission, a successful attorney with
half his practice dealing with oil and gas.


        1
          At the outset of the hearing, the trial court asked if the affidavit of heirship stated that Willard O.
Allen died without a will. Appellant’s attorney replied, “No, it states that he died with a Will, and the
Will is attached to the Affidavit of Heirship.”

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      The facts in Armendariz De Acosta v. Cadena, 165 S.W. 555 (Tex. Civ.
App.—El Paso 1914, writ ref’d), are very different from the case before this court.
The principal holding in Cadena is that the document the decedent executed in
Mexico could not be probated as a will in Texas because it violated the Texas
statute that provided that a will “shall be in writing and signed by the testator, or by
some other person by his direction and in his presence.” 165 S.W. at 558. As
“another reason” the document was not admitted to probate, the court pointed out
that the proponent knew of the contents of the instrument within a month of the
testator’s death but that he and the beneficiaries entered a verbal agreement where
he waived the provisions of the instrument in favor of a different division of the
real property.    Id.   The proponent then made an application for letters of
administration, and he managed the estate as administrator until the estate was
closed. When the other beneficiaries (the wife and daughter) repudiated the verbal
agreement, the proponent filed suit for his portion of the land under the alleged
verbal agreement with them and under an alleged verbal partnership contract with
the decedent. The trial court in that case instructed the jury to return a verdict for
the wife and daughter on the ground that the contracts, even if made, were
unenforceable because they were not in writing. Id. at 557.
      Appellant also cites the early case of House v. House, 222 S.W. 322 (Tex.
Civ. App.—Texarkana 1920, writ dism’d w.o.j.), for his contention that reliance on
the advice of a lawyer is insufficient to support the trial court’s holding below. But
the House court specifically found that the proponent had not relied on the advice
of counsel that the instrument was not a valid will; instead she sought advice from
other lawyers on the same topic over the years. And she had only described the
instrument to her initial counsel; she did not show him the document. Again, the
facts in House were different from those in this case.


                                          11
      The evidence was legally sufficient to support the trial court’s conclusion
that the proponent was not in default. Although not challenged, we further find
that the facts were also factually sufficient. Appellant’s issue is overruled.
                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


May 9, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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