







NUMBER 13-09-00065-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

IN THE ESTATE OF 
ROBERTO FLORES MARQUEZ, DECEASED
 

On appeal from the Probate Court
of Hidalgo County, Texas.
 

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza


	Appellant, Laura Perez, challenges the probate court's denial of her application to
probate a purported holographic will executed by her deceased husband, Roberto Flores
Marquez.  See Tex. Prob. Code Ann. § 84(c) (Vernon Supp. 2008).  We affirm.
I.  Background
	Marquez, a resident of Mexico City, died in an auto accident on February 7, 1990.
According to Perez, Marquez owned real and personal property in both Mexico and Hidalgo
County, Texas, worth over one million dollars in total.  Perez claims that she discovered a
document she believed to be Marquez's handwritten will in 2006 "while cleaning up boxes
in her apartment in Mexico."  On November 1, 2006, Perez filed an "Application to Probate
a Holographic Will and for Issuance of Letters of Administration" with the Hidalgo County
probate court pursuant to sections 73(a) and 81(a) of the Texas Probate Code.  See id. §
73(a) (Vernon 2003), § 81(a) (Vernon Supp. 2008).
	The purported will was actually a letter from Marquez to Perez dated October 18,
1989.  According to Perez, Marquez wrote the letter because he was unsure that he had
effectively expressed his testamentary wishes in a previously-executed formal written will,
which was subsequently lost or destroyed.  The letter, as translated from Spanish to English
by a licensed court interpreter, states in its entirety as follows:
Hi Laura

	As I once promised you, I just finished my will in McAllen.  The only
thing I hope is that these gringos have correctly understood what I left you,
since they [sic] are some lots in my name in Mexico.  This way you are not
going to have any problems with my family.  That's what I hope.  I love you
hija.

Roberto

(Emphases in original.)
	At a hearing on March 21, 2007, the probate court heard testimony from Perez and
two other witnesses identifying the handwriting on the letter as that of Marquez. 
Nevertheless, the court denied Perez's application by written order on January 12, 2009. 
This appeal followed.
II.  Discussion
	On appeal, Perez contends that the probate court erred by denying her application
because she met the requirements for probating a holographic will.  Section 84(c) of the
Texas Probate Code provides:  "If not self-proved as provided in this Code, a will wholly in
the handwriting of the testator may be proved by two witnesses to his handwriting, which
evidence may be by sworn testimony or affidavit taken in open court . . . ."  Id. § 84(c). 
Perez does not dispute that the October 18, 1989 letter was not self-proving under the
probate code.  Accordingly, she produced the testimony of two witnesses to prove that the
handwriting on the letter belonged to Marquez.
	Generally, the uncontroverted opinion testimony of two witnesses is sufficient to
identify the handwriting in a will as that of the testator.  In re Mateer's Estate, 296 S.W. 907,
908-909 (Tex. Civ. App.-Texarkana 1927, writ ref'd).  Here, however, the record reflects
that the probate court ruled as it did not because it was unconvinced that the handwriting
on the letter belonged to Marquez, but rather because it concluded that the letter itself does
not constitute a will.  We agree with that determination.
	An instrument is not a will unless it is executed with testamentary intent.  Hinson v.
Hinson, 154 Tex. 561, 564, 280 S.W.2d 731, 735 (1955); In re Estate of Steed, 152 S.W.3d
797, 812 (Tex. App.-Texarkana 2004, pet. denied); Ayala v. Martinez, 883 S.W.2d 270, 272
(Tex. App.-Corpus Christi 1994, writ denied).  The sufficiency of the intent does not depend
on the maker's realization that he or she is making a will, or on the maker's designation of
the instrument as a will, but on his or her intention to create a revocable disposition of the
property to take effect after the maker's death.  Hinson, 154 Tex. at 564, 208 S.W.3d at
733; Steed, 152 S.W.3d at 812.  Moreover,
[a]n essential to the testamentary character of a letter is that the writer intend
by that very instrument to make a posthumous disposition of his property. 
When, therefore, the language used clearly indicates that the writer does not
intend the letter in question to have that effect, . . . the courts hold the letter
not to be testamentary in character.

In re Estate of Kirby, 516 S.W.2d 284, 287 (Tex. Civ. App.-Waco 1974, writ ref'd n.r.e.)
(citing 40 A.L.R. 2d 698, at *7) (emphasis added).
	It is apparent that Marquez did not write the October 18, 1989 letter with the requisite
intent.  In the letter, Marquez references the fact that he had "just finished" a formal written
will in which he left some property to Perez.  While the formal written will was never located,
the reference to it in the October 18, 1989 letter indicates that Marquez did not intend for
"that very instrument"--i.e., the letter--to effectuate a disposition of his property after his
death.  See id.  Instead, Marquez clearly intended for his previously-executed formal written
will to serve that purpose.  The October 18, 1989 letter merely expressed Marquez's
concern that his testamentary wishes, as set forth in his formal will, would not be "correctly
understood"; it did not purport to provide for any additional disposition of property upon
Marquez's death.  
	For the foregoing reasons, we conclude that Marquez did not intend the October 18,
1989 letter to be his will.  Because the letter was not executed with testamentary intent, it
did not constitute a will.  See Hinson, 154 Tex. at 564, 280 S.W.2d at 735.  Accordingly, the
probate court did not err by denying Perez's application to probate the letter.  Perez's sole
issue is overruled.
III.  Conclusion
	We affirm the judgment of the probate court.


  
							DORI CONTRERAS GARZA,
							Justice

Memorandum Opinion delivered and
filed this the 22nd day of October, 2009.
