                             NUMBER 13-12-00576-CV

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI _ EDINBURG

           IN THE ESTATE OF JAMES M. LUTHEN, DECEASED


               On appeal from the County Court at Law No.           I
                       of Cameron Gounty, Texas.


                            MEMORANDUM OPINION



             Before Justices Benavides, Perkes, and Longoria
                 Memorandum Opinion by Justice Perkes
      This appeal concerns James M. Luthen's will and trust. The trial court granted

traditional summary judgment in favor of appellee Donald Ley,1 the named executor in

Luthen's will, and against appellants Patrick James Luthen, individually and as next



      I Donald Ley is married to Luthen's daughter Sandra Ley.
friend of Andrew Luthen, and Rachel Luthen (collectively "contestants").2 Contestants

asserted, and re-argue here, that their father Rick Luthen unduly influenced Luthen to

make the second codicil to his will.

        The trial court granted a separate traditional summary judgment in favor of Ley

on the declaratory-judgment claim brought by appellant Terolle Ann Luthen ("Ierolle

Ann").3 Terolle Ann argues that the corporate stock mentioned in Luthen's trust should

pass to her and her sister Nancy Jo Wrather ("Nancy Jo")a in accordance with the trust

provisions rather than be available          for Ley to purchase as purportedly allowed             by

Luthen's second codicil to his     will.   ln the alternative, Terolle Ann argues Ley should pay

fair market value for the stock because the second codicil did not sufficiently incorporate

by reference an agreement setting the price. By a separate issue, Terolle Ann contends

the trial court's order admitting Luthen's will with its codicils to probate erred "to the

extent ¡t allows" Ley to administrate Luthen's dependent-administration estate without

court supervision.

        Because the evidence presents a genuine issue of material fact on the existence

of undue influence, we reverse the kial court's summary judgment in favor of Ley on

contestants' undue-influence challenge, remand that issue for further proceedings, and

reverse the trial court's order admitting the second codicil to probate. On Terolle Ann's

        2 Patrick James Luthen, Rachel Luthen, and Andrew Luthen
                                                                  are s¡blings and are Luthen's great-
grandchildren. Andrew is a minor. Given that the family members' shared surname, we refer to Luthen
family members other than James M. Luthen by their given names.

       3 Terolle Ann Luthen is Luthen's daughter. Terolle Ann has the same first name as heÍ mother, so
we use her f¡rst and middìe names for clar¡ty.

         4 Nancy Jo Wrather ¡s Luthen's other daughter, and she is Rick's mother. For consistency with
our treatment other Luthen family members, we do not refer to her by her surname. We use her first and
middle names because that is how the parties refer to her in their brìefs.
appeal, we hold the trust provision distributing the stock is ambiguous regarding the

circumstances in which the stock passes to Terolle Ann, and we reverse the trial court's

summary judgment in favor            of Ley on that issue and remand it because ambiguity
precludes summary judgment.

                                          I.   BACKGROUND

        After Luthen's wife Terolle K. Luthen died,s his daughter Nancy Jo oversaw his

health care. Luthen was in his early nineties and living in Harlingen, Texas, near Nancy

Jo and Patrick. While in Texas, several caretakers monitored Luthen's health.

        About ten months after Luthen's wife's death, Rick drove from Minnesota, where

he resided, to Harlingen, picked up Luthen, and returned with Luthen to Minnesota,

where Luthen had resided before living in Texas. According to Terolle Ann's brief, it

was in Minnesota that Luthen founded a successful company called L&M Supply,

lncorporated, the stock of which is relevant to this appeal. The reason Rick took Luthen

to Minnesota is disputed: Rick testified that he and Nancy Jo agreed he would take

over overseeing Luihen's care, and Sandra Ley (Sandra) explained that Nancy Jo had

decided to move to Seattle; Patrick, however, testified that Nancy Jo complained that

Rick took Luthen against her wishes.6

        ln Minnesota, Rick and his girlfriend Janella Krumrei oversaw Luthen's care.
Rick and Krumrei testified that Krumrei ensured Luthen took his prescribed medications.

Contestants challenge that assertion, relying on Rachel and Patrick's testimony that


       5 The details regarding Luthen's wife's estate can be found in a separate case before this Court.
See ln re Estate of Terolle K. Luúhen, No. 13-12-00638-CV, 2014 WL 4795038, at *1-10 (Tex. App.-
Corpus Christi Sept. 25, 2014, no pet. h.) (mem. op.).

       6   The record does not include deposition testimony of Nancy Jo.
Rick withheld medications.       lt is undisputed that Luthen financially assisted Rick and
Krumrei while in their   care. As evidence of Rick's control over Luthen, contestants
presented a letter written by Jim Olson, Luthen's friend and financial advisor, to Nancy

Jo, in which Olson stated:

       I am sure Rick is in control of [Luthen's] actions and I don't know if your
       Dad makes any decisions on h¡s own anymore, I was so much more
       comfortable when you were down in Texas looking after [Luthen], I had no
       worries and knew [Luthen] was getting great care, now I am not so sure

       .     right now [Rick] has your Dad's checkbook and is making the
       decisions for ILuthen].

       While in Minnesota, Luthen executed the second codicil to his will. Kent Nyberg

drafted the cod¡cil. He testified that he represented Luthen for more than twenty-one

years. He had also once represented Rick in a real estate transaction, and contestants

assert Nyberg represented Rick more than Luthen in the execution of the second

codicil. lt is undisputed that Rick was present when Luthen executed the codicil. The

witnesses to the codicil execution were Nyberg's wife Wendy and Wade Freshour, a

minister who had an office in the same building as Nyberg's office, where the codicil

execution occurred. Contestants question the selection of Freshour as            a   witness,

characterizing him as a "straw witness" because, according to an employee of Nyberg,

Freshour was infrequently selected as such a witness.

       Luthen's second codicil substituted Rick, who received only a share of Luthen's

"remaining tangible personal property" under the will and its first codicil, for contestants

as a beneficiary of Luthen's residuary estate. Nyberg testified that Luthen told him, "l

want the kids out, lwant Rick back       in." The second   codicil also granted to Ley "the

option to purchase any stock of L&M Supply, lncorporated, which I own at my death."
         II. STANDARD FOR         REVIEWING TRADÍTIONAL SUMMARY JUDGMENT

         We review the trial court's summary judgment de novo. Provident Life                            &

Accidentlns.Co.v.Knott, 128S.W.3d211,215(Tex.2003). Thestandardofreview

for a traditional summary-judgment motion is well-established: ('l) the movant must

show there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law; (2) we take as true evidence favorable to the non-movant; and (3) we

indulge every reasonable inference in favor of the non-movant and resolve all doubts in

its   favor. NÌxon v. Mr. Prop. Mgmt. Co.,690 S.W.2d 546, 548-49 (Tex. 1985); see Tex.

R. Cv. P. 166a(c). The nonmovant has no burden to respond to or present evidence

regarding the motion until the movant has carried its burden. State v. Ninety Thousand

Two Hundred Thitty-Five Dollars and No Cenfs in U.S. Currency,390 S.W.3d 289, 292

(Tex.2013). lf opposing parties move for traditional summary judgment on the same

issues, as Ley and Terolle Ann did on Terolle Ann's declaratory-judgment claim, and the

trial court grants one motion and denies the other, "we review all the summary judgment

evidence, determine all issues presented, and render the judgment the trial court should

have." Meniman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013);                                Mann

Frankfort Stein & Lipp Advisors, Inc- v. Fielding, 289 S.W.3d 844,848 (Tex. 2009).

                                      III. UNDUE INFLUENCE
         By two issues, which we construe as one,7 contestants argue the evidence

creates a genuine issue of material fact regarding the existence of undue influence by




          7 As briefed, one issue challenges
                                             the trial court's summary-judgment order, and the other issue,
logically premised on the first, challenges the trial court's order admitting Luthen's will with the second
codicil to probate.
Rick on Luthen in making the second codicil, thereby precluding it from being admitted

to probate. We agree.

A.     Applicable Law

       Undue influence in the procurement of a testamentary document is a ground for

its avoidance. Rothermel v. Duncan,369 S.W.2d 917,922 (Tex. 1963). Not every

influence, however, ¡s undue. ld.; ln re Estate of Graham,69 S.W.3d 598, 609 (Tex.

App.-Corpus Christi 2001, no pet.). lnfluence is undue only when it destroys the

testator's free agency and makes the will express the wishes of the one exerting the

influence rather than the testator. Rothermel, 369 S.W.2d         at 922; tn re Estate of
Graham, 69 S.W.3d at 609. One may request, importune, or entreat another to create a

favorable dispositive treatment, but unless the importunities or entreat¡es are shown to

be so excessive as to subvert the will of the maker, they will not taint the validity of the

instrument. Rothermel,369 S.W.2d at922; In re Estate of Graham,69 S.W.3d at 609.

       Proof   of undue   influence "involves an extended course          of   dealings and

circumstances" and may be proved by direct or circumstantial evidence. Rothermel,
                                                                                               l


369 S.W.2d al 922; In re Estate of Graham,69 S.W.3d at         609. "More often than not,      i




undue influence is impossible to establish by direct proof[] and may only be shown by

circumstances." In re Estate of O/sson, 344 S.W.2d 171, 173-74 (Tex. Civ. App.-El

Paso 1961, writ re'fd n.r.e.); see In re Estate of Fiedler, No. 13-09-00386-CV, 2011

1441888,   at -3 (Tex. App.-Corpus Christi Apr. 14,2011           ,   no pet.) (mem. op.).
Circumstances proving undue influence "must be         of a reasonably satisfactory     and

convincing character, and they must not be equally consistent with the absence of the

exercise of such influence." Rothermel, 369 S.W.2d af 922: ln re Estate of Graham,6g
S.W.3d at 609. Moreover, the circumstantial evidence must do more than merely create

a surmise or suspicion that undue influence was exerted at the time of execution. /n re

Estate of Graham, 69 S.W.3d at 61Q; Guthrie        v.   Suiter, 934 S.W.2d 820, 831 (Tex.

App.-Houston [1st Dist.] 1996, no writ); see Rothermel, 369 S.W.2d at 922.

      To prevail on proving undue influence, the contestant must prove: (1) the
existence and exertion of an influence; (2) the effective operation of such influence so

as to subvert or overpower the mind of the testator at the time of the execution of the

testament or codicil; and (3) the execution of the testament or codicil which the maker

would not have executed but for such influence. Rothermel,369 S.W.2d at 922; In re

Estate of Graham,69 S.W.3d at       609. The    Rothermel Court provides ten factors to

determine whether the three undue-influence elements have been satisfied. Rothermel,

369 S.W.2d at 923. We consider:

      (1)    the nature and type of relationship existing between the testator,
             the contestants, and the party accused of exerting such influence;

      (2)    the opportunities existing for the exertion of ihe type of influence or
             deception possessed or employed;

      (3)    the circumstances surrounding the drafting and execution;

      (4)    the existence of a fraudulent motive;

      (5)    whether there has been a habitual subjection of the testator to the
             control of another;

      (6)    the state of the testator's mind at the time of execution'
      (7)    the testator's mental or physical incapacity to resist or       the
             susceptibility of the testator's mind to the type and extent of the
             influence exerted;

      (8)    words and acts of the testator;
        (9)     weakness of mind and body of the testator, whether produced by
                infirmities of age or by disease or otherwise; and

        (10)    whether the testament executed     is   unnatural   in its terms   of
                disposition of property.

ld.; ln re Estate of Graham, 69 S.W.3d at 609-10. Factors one through five relate to the

first undue-influence element (whether such influence existed and was exerted); factors

six through nine relate to the second element (whether the testator's will was subverted

or overpowered by such influence); and the tenth factor relates to the third element

(whether the testament would have been executed but for the influence). See

Rothermel,369 S.W.2d at 923. ln reviewing a claim of undue influence, it is proper to

consider all evidence of relevant matters that occurred within a reasonable time before

or after the will's execution. Watson v. Dingler, 831 S.W.2d 834, 837 (Tex. App.-

Houston [14th Dist.] 1992, wrif. denied); see a/so In    re   Estate of Fiedler, 2011 WL

1441888, at.3.

B.      Discussion

        1, The existence and exertion of an ínfluence

       a.       Nature and type of relationship between Luthen, the contestants, and
                Rick

        Luthen's friend Jack Williams testified that Luthen's relationship with Rick was

mostly bad. The depositions reveal that Rick has an extensive hÍstory of using illegal

drugs, and Williams explained that, based on his conversations with Luthen, Rick's drug

habit soured the relationship between Rick and Luthen. Patrick said Luthen blamed

Rick's drug use        for Rick's "behavior," which Luthen allegedly viewed with
"dissatisfaction. "
       Deposition testimony highlighted specific instances            of   tension   in    Rick's

relationship with Luthen. Will¡ams related an incident when Luthen took property from

Rick "[b]ecause of the drugs and [Luthen] didn't think that [Rick] deserved the property."

According to Patrick, Rick responded by "get[ting] in [Luthen's] face," pushing him, and

"threaten[ing] to beat him up if he ever tried to cross him again."

       Williams testified that the relationship between Luthen and Rick worsened until

about the last year of Luthen's life, when Rick took over caring for       him. ln Williams's
estimation, their relationship improved at that point. According to Rick, Luthen changed

his will and told him, "Here's your second chance, don't give it away." Rick also

asserted he no longer uses drugs.

       ln contrast to Rick's rocky relationship with Luthen, Patrick's testimony depicts a

positive relationship between himself and Luthen. Krumrei said Luthen "loved Patrick to

pieces." Nyberg, on the other hand, said Luthen called Patrick a "crook" and,                  in

discussing his estate, wanted Patrick "out        totally." Sandra remembered             Luthen

complaining that he gave Patrick a boat with the expectation that Patrick would take him

fishing but then never saw the boat again.

      There is no record evidence of how Rachel and Luthen interacted and no

evidence regarding the relationship between Luthen and Andrew. Luthen named

Rachel and Andrew as beneficiaries in his will before it was amended with the second

codicil. Regarding the contestants' relationship with Rick, Rachel testified that her
relationship with her dad was   good. Patrick testified that his relationship with his dad
was bad, and he related two incidents in which Rick threatened to physically harm him.

There is no record evidence of Rick's relationship with Andrew.
                 Viewing the foregoing, conflicting evidence8 in the light most favorable to the

contestants, it weighs in favor of there being a genuine issue of material fact on the first

undue-influence element.e

                 b.    Opportunities to exert undue influence

                 Moving Luthen to Minnesota to live alone with Rick and Krumrei gave Rick an

opportunity to exert undue influence. ln Minnesota, Luthen was in the sole care of Rick

and Krumre¡, and, as detailed below in discussing Luthen's alleged physical and mental

infirmities, Luthen depended on them. Moreover, Patrick testified that Rick prevented

Patrick and all of the other family members from seeing Luthen, excluding the possibility

of countervailing influences. Rachel claimed that Rick isolated Luthen, keeping him
"away from a lot of people            . . . ." According to Patrick, Rick threatened him         physical

harm if he attempted to visit Luthen. Patrick also testified that Rick took Luthen's cell

phone and screened Luthen's calls, disallowing Patrick to talk                    to Luthen.      Olson's

testimony supported this assertion; he testified that Nancy                      Jo believed       Patrick

intercepted her phone calls and refused to relay her voicemails to Luthen.

                 Ley agrees that opportunity existed, but he emphasizes that opportunity alone ¡s

insufficient to prove undue influence. Ley ¡s conect that proof of opportunity by itself is


          We recite only the evidence that is necessary to the dispositìon of this appeal. See TEX. R. App.
             E

P. 47.   1   .
          Because the evidence already d¡scussed under this factor ¡s sufficient to manifest tension in the
relevant relationships, we will not consider less relevant evidence about Rick's relationship with others
besides Luthen and contestants. See Rothermel v. Duncan, 369 S.W,2d 917 , 923 (Tex. 1963) (focusing
only on the "relationship existing between the testator, the contestants, and any party accused of exerting
such influence."). We incorporate throughout the factors analysis this rule of limiting our use of evidence
to evidence that is both relevant and supported by the record.

         s The ten undue-influence factors are useful, but because they are factors and not elements,
proof satisfying each factor is not a necessary condit¡on to finding undue influence. See generally
Rothermel, 369 S.W.2d al 923; ln re Estate of Graham, 69 S.W.3d 598, 609-11 (Tex. App.-Corpus
Christi 2001,nopet.). The factors need notbe independently rather than aggregately weighed, butwe do
so to because ¡t helps aggregately weigh them in this case.


                                                    10
not dispositive of the first element, but it is neveftheless a relevant factor to be

weighted. See Rothermel,369 S.W.2d alg23; ln re Estate of Graham,69 S.W.3d at

609-10. This factor weighs in favor of holding that a fact issue exists.

        c,         The circumstances surrounding the second codicif

        Nyberg drafted the second codicil. Although he worked with Luthen for many

years, contestants make much of the fact that he previously represented Rick in a real

estate transaction. Nyberg acknowledged representing Rick in the property purchase,

but he disavowed any other work for                 him. ln fact, Nyberg testified that he had
prosecuted Rick for violating a zoning ordinance. Nevertheless, when asked if Rick was

his client during the codicil execution, Nyberg's ultimate response was less clear; he

responded, "That would be             a good question." Rick testified that Nyberg 'Just did
business stuff for me" and "drafted some contracts I've had in the past for me." When

asked if he considered Nyberg to be one of his lawyers, Rick affirmed that he did.10

        Patrick testified that Nancy Jo informed him in a telephone conversation that Rick

wanted to change Luthen's will and thereby remove Patrick. This testimony supports a

conclusion that Rick, rather than Luthen, initiated the will change. Other testimony,

discussed under the next factor, indicates Rick attempted to use Luthen's will to control

and get revenge on some family members. Viewing this evidence in the light most

favorable to the contestants, this factor favors finding a fact issue on the first element of

undue influence.l l



        10   Rìck earlier answered the same question in the negative.

       11
          We are less suspicious than the contestants regarding other details of the execution and do not
address them. See Tex. R. App. P.47.1.
        d.         The existence of a fraudulent motive

        Rick was in a position to financially benefit by influencing Luthen to change his

will. while Luthen lived, Rick received Luthen's financial assistance. such assistance
would cease after Luthen's death because Luthen's will and its first codicil did not give

much to Rick. ln addition to the obvious financial incentive for changing the will, there is

evidence Rick wanted            to use Luthen's will to control or exact revenge on family
members.l2 Patrick testified that Rick "had a vendetta" with him and threatened, "l'm

going to take your money . . . you've benefited enough from the quote/unquote Luthen's

[sic]." Patrick also testified that Nancy Jo informed him that Rick wanted to change the
will "and that [Rick]     was-you      know, that I better be careful."l3

        ln response, Ley argues that the alleged fraudulent motive is insufficient to prove

undue influence. Again, although proof of this factor alone is insufficient to prove undue

influence, it is one of the ten applicable factors. This factor weighs in favor of finding a

fact issue.

        e.         Habitual Subjection

        Ley correctly notes that several deponents thought Luthen was strong-willed and

generally not a person easily subjected to another person's influence. When Olson was

asked what his response had been to the allegation by someone (the record does not

reveal who alleged it) that Rick controlled Luthen "with respect to the second codicil,"

Olson answered, "My response was not much. Listening and saying, well, I don't know,

I don't think so; but, you know, that's her opinion." On the other hand, Olson's email

        12   There is substantial testìmony chronicling the tension between Rick and other family members.

        13   Rachel also testified that Rick wanted to "even the score" with his ex-wife, but she d¡d not say
Rick sought to do that in connection with Luthen's will.
warned Nancy Jo, "l am sure Rick is in control of [Luthen's] actions and I don't know if

your Dad makes any decisions on his own anymore." Olson's email, which was sent

about one month before Luthen's death, is some evidence of habitual subjection, and it

is sufficient to create a genuine issue of material fact on this factor.

       f.       Balance

       On balance, the above factors reveal a genuine issue of material fact on the

existence and exertion of influence. See Rothermel, 369 S.W.2d at             922-23. lt   is

undisputed Rick had an opportunity and reason to influence Luthen to change his will,

which previously provided little for Rick. lt is undisputed Rick and Luthen had a rocky

relationship. Although there is some evidence their relationship improved at the end,

the perceived improvement could be evidence of the influence as much as it could be of

an unexpected upswing in the relationship. Regardless, it is undisputed that after Rick

took Luthen to Minnesota and away from contestants, Luthen replaced contestants            in

his will with   Rick. Some testimony indicates Rick threatened this type of change         to

Luthen's    will. There is also a fact issue as to the extent   Nyberg represented Rick and

as to the extent Rick subjected Luthen's mind. Viewed in ihe light most favorable to

contestants, the evidence suppofts finding a fact issue on the first element of undue

influence. See Nxon, 690 S.W.2d at 548-49.

      2.    The effect of the exerted influence on the testator's mind

       Factors six through nine overlap more than factors one through five, and based

on the evidence, we review them together. Luthen was of advanced age and had

limited mobility. Testimony showed he had impaired hearing, and Rachel indicated he

needed a magnifying glass to read.


                                              13
        The evidence of Luthen's mental state at the time of the second codicil                            is

conflicting. As Ley stresses, several deponents, including those present when Luthen

executed his second codicil, testified that Luthen was lucid and mentally sound. ln

contrast, Pakick claimed Luthen was forgetful and "not aware of his surround ings,"ra

and Patrick doubted Luthen's "ability to make informed decisions." Rachel testified that

Luthen's short-term memory was not intact and that he lacked the ability to disregard

distractions and "to really assess options, understand completely the situation [changing

his   willl."    Rachel worried that Luthen was "very vulnerable for that sort of situation

[being subjected to undue influence] . . . he had just lost his wife of 70-odd years. He

was lonely." Rachel added that Rick isolated and monitored Luthen "at that emotional

period in his life       ..   .."   ln addition to Patrick and Rachel's testimony, contestants
presented a medical document of Luthen's "patient information" that stated he suffered

a "functional limitation" of "confusion" and that it was "unsafe [for him] to go out of the

homealone...-"
        Ley dismisses contestants' evidence as irrelevant to Luthen's mental state on the

day he executed his second codicil, noting that neither Patrick nor Rachel were present

when Luthen executed             it.   ln fact, Patrick and Rachel had not seen Luthen in the
months immediately preceding the codicil execution. Although less proximate to the

codicil execution than the testimony cited by Ley, contestants' evidence of Luthen's

mental decline is relevant because it is proper to consider evidence, not only from the

day of the codicil's execution, but that occurred within a reasonable time before the

codicil execution. See Watson,831 S.W.2d at 837; see also In                         re   Estate of Fiedler,


        14   Patr¡ck repeatedly testified that Luthen Iacked situational awareness
2011 1441888, at       *3. viewed      in the light most favorable to the contestants and given

the evidentiary conflict, this element weighs in favor of submitting undue influence to                    a

jury. See Nxon, 690 S.W.2d at 548-49.

        3. But for causation
        The last element is "predicated upon" the last factor: "whether the testament

executed is unnatural in its terms of disposition of property." Rothermet,36g S.W.2d at

923. whether the testament unnaturally disposes of property is, to a certain                        extent,

directed by the preceding factors.             we    consider the testator's stated desires and

actions, see In re Estate of Johnson, 340 S.W.3d 769, 784 (Tex. App.-San Antonio

2011, pet. denied), and whether the testator unexpectedly disinherited close family

members previously provided for, see In re Estate of Russe//, 311 S.W.3d S2B, 53S

(Tex.   App.-El Paso 2009, no pet.). "[l]t is only where all reasonable explanation                       in

affection for the devise is lacking that the trier of facts may" conclude the devise is an

"unnatural disposition." ld. at 923-24. seizing upon this definition, Ley argues that the

summary judgment was proper because Olson offered two reasonable explanations.

First, Olson speculated that Luthen may have changed his will because he and R¡ck

reconciled after Rick began caring for             him. Second, Olson speculated that Rick's
changed financial situation may have prompted Luthen to make provisions for him.15

        The presentation of an explanation does not foreclose competing evidence or

explanations, and whether an explanation is reasonable hinges on surrounding facts


         1s Olson recalled that when he created
                                                   an irrevocab¡e trust for Luthen, Luthen excluded Rick
because he thought Rick was "fine" financially. Olson explained that at the time he created the trust, Rick
owned stock, and Olson guessed that Luthen thought Rick was "adequately take care of'with the stock.
By the time of the second codìcil, however, Rick "no longer ha[d] that stock, and I think lluthen] felt that
Rick need to have something in the will since lluthen's] or¡ginal intent. . . was no longer valid."


                                                    15
and credibility. See In re Estate of Johnson,340 S.W.3d al        784. ln ln re    Estate of

Johnson, the appellants challenged the jury's undue-influence finding using the same

contention advanced by Ley. See id.    at783. The appellants argued that "the evidence
could not support a finding of undue influence because evidence was presented

establ¡shing a reasonable explanation for B's disposition of his estate."   /d.   Our sister

appellate court refused their interpretation of the law "because it ignores the standard of

review," which was a sufficiency standard.       /d   A legal sufficiency review views the
evidence in the light most favorable to the jury's verdict, rd. af 775-76 (applying City of

Kelter v. Witson, 168 S.W.3d 802, 827 (Tex. 2005)), which was a finding of undue

influence in ln re Estate of Johnson, id. at 783-84. Likewise, our summary-judgment

review views the evidence in the light most favorable to the non-movants, see Nxon,

690 S.W.2d at 548-49, who in this case argue for a finding of undue influence.

       In re Estate of Johnson recognized the inescapable principle that the mere
offer¡ng of an explanation is not dispositive of this factor and element. See id. af 784.

Olson's explanation does not foreclose contestants' ability to present countervailing

evidence and explanations. Contestants character¡ze Luthen's disposition as unnatural

because it substituted Rick, who had a rocky relationship with Luthen and had been

practically excluded from Luthen's will, for contestants, whom allegedly had a great,

longstanding relationship with Luthen and whom Luthen had included in his original

estate plan. We hold that when, as here, competing explanat¡ons are advanced by the

parties, "the jury must determine which explanation should be given more weight and

which explanation is more credible."   /d. This factor and this element weigh     in favor of

finding a fact issue. See Nxon, 690 S.W.2d at 548-49.


                                            16
C.       Summary

         Having concluded contestants presented sufficient evidence to create a genuine

issue of material fact on the three elements of undue influence, we sustain their issue

and hold that the trial court erred by admitting the second codicil to probate. Because

the validity of the second codicil depends on the proceedings after remand, we do not

address appellant Terolle Ann's fourth issue, in which she argues that the second

codicil did not properly incorporate by reference the "Buy/Sell Agreement" noted in the

codicil.lG See Tex. R. App. P. 47.1             .   ln addition, because we reverse the trial court's

order admitting the codicil to probate, we need not address Terolle Ann's fifth issue,

wherein she asserts that the trial court's language in the order is error "to the extent it

allows Ley to administer the estate without court supervision." See ld.

                                          IV. TRUST PROVISION
        By her first three issues, which we construe as one, Terolle Ann argues that

Luthen's trust gave her the L&M stock and that Luthen never explicitly or implicitly

revoked that conveyance. It is undisputed that Luthen transferred the L&M stock to his

trust.rT The trust provision Terolle Ann rel¡es on states:

        2.3.3 lf my wife, TEROLLE        K. LUTHEN, shall survive me, then I direct my
                   successor trustee to allocate the assets within this trust between
                   the following trusts created by my Will of October 8, 1996.[18] I
                   specifically direct, however, that any shares of L&M Supply,
                   lncorporated, which are part of this trust, shall ultimately descend to
                   my daughters, TEROLLE ANN LUTHEN and NANCY JO, contrary
                   to the terms of my Will dated October 8, 1996.

        ro Appellant Terolle Ann argues this issue as an alternative to her first three issues,
                                                                                                which are
considefed in the next section.
        17 The trust recitals record that Luthen transferred the property to the trust that the trustees would
distribute under the trust provisions. Ley does not contest that Luthen transferred the stock to the trust.

        18   No list of trusts followed this paragraph. The trusts are listed and described in Luthen's will.


                                                        17
         Ley contends that the trust provision specif¡cally conditions the grant on Luthen's

wife surviving him, which she did not. According to Ley, the L&M stock instead passes

under the trust provision immediately following the foregoing one:

         2.3.4 Any interest in the trust assets not effectively distributed by the
               preceding provisions of this agreement shall be distributed
               according to my will.

The second codicil to Luthen's will, if valid, gave Ley the option to purchase the L&M

stock.

B.       Standard of Review and Applicable Law

         Construction of an unambiguous trust is a question of law we review de novo.

Gamboa v. Gamboa,383 S.W.3d 263,273 (Tex. App.-San Antonio 2012, no pet.); see

Soefje v. Jones,270 S.W.3d 617,625 (Tex. App.-San Antonio 2008, no pet.); Eckels

v. Davis, 111 S.W.3d 687, 694 (Tex. App.-Fort Worth 2003, pet. denied); Hurley            v.

Moody Nat'l Bank of Galveston,9S S.W.3d 307, 310 (Tex. App.-Houston [1st Dist.]

2003, no pet.). "ln construing a trust, we are to ascertain the intent of the grantor from

the language in the four corners of the instrument." Soef'e, 270 S.W.3d at 628. lf the

words are unambiguous, extrinsic evidence is not admissible to show the maker had

some other intent than that expressed in the instrument. Soefê, 270 S.W.3d at 628

(applying San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000)); see

Eckels, 111 S.W.3d at 694; Hurley,98 S.W.3d at          310. "lf, on the other hand, the
meaning of the instrument is uncertain or reasonably susceptible        to more than one
meaning, the instrument is ambiguous." In re Ellison Grandchildren Trust,261 S.W.3d
111, 117 (Tex. App.-San Antonio 2008, pet. denied); Eckels, 111 S.W.3d at 694

(internal quote omitted).

        ïhe determination of whether a trust is ambiguous is a question of law that                       we

review de novo.le Myrick v. Moody,802 S.W.2d 735,738 (Tex. App.-Houston [14th

Dist.l 1990, writ denied). There are two types of ambiguity: (1) patent ambiguity, which

emerges from the words themselves; and (2) latent ambiguity, which emerges when the

words, although conveying a sensible. meaning on their face, cannot be carried out

without further clarification. In        re   Ellison Grandchildren Trust, 261 S.W.3d               at   117;

Eckels, 111 S.W.3d at 695; see Nat'l Union F¡re lns. Co. v. CBI lndus., \nc.,907 S.W:2d

517, 520 n.4 (Tex. 1995) (explaining a latent ambiguity would exist if a contract called

for goods to be delivered to "the green house on Pecan Street," but there were in fact

two green houses on Pecan Skeet). Where there is patent or latent ambiguity, a court

may admit extrinsic evidence to show the settlor's intent. /n re Ellison Grandchildren

Trust,261 S.W.3d at 117; Eckels, 111 S.W.3d at                       696. lf a trust instrument is
ambiguous, its interpretation presents             a fact issue precluding summary judgment.
Myrick,802 S.W.2d at 738; see Doggett v. Robinson,345 S.W.3d 94, 99 (Tex.                           App.-
Houston [14th Dist.] 201 l, no pet.).20

C.      Discussion




        1e   For this reason, Ley is incorrect in cond¡tioning our review of ambiguity on whether Terolle Ann
raised it ìn the trial court.

        20The rules of construction for wllls and trusts are the same. ln re Ray Ellison Grandchildren
Trust, 261 S.W.3d 1 11, 117 (Tex. App.-San Antonio 2008, pet. denied)i see Eckels v. Davis, 111
S.W.3d 687, 694 (Tex. App.-Fort Worth 2003, pet. denied); Hurley v. Moody Nat'l Bank of Galveston, 98
S.W.3d 307, 310 (Tex. App.-Houston [1st Dìst.] 2003, no pet.).
         We hold that the section 2.3.3 of Luthen's trust is patently ambiguous. The

second sentence uses language of contrast-"| specifically direct, however, that any

shares . . . shall ultimately descend"-, but it is unclear whether Luthen was contrasting

the provisions of that sentence with those of the first sentence or with the provisions of

his will, which Luthen mentions in the same sentence-"contrary to the terms of my

W¡ll   ...."       ln other words, the second sentence, read in context, could mean:                      (1)

regardless          of whether his wife surv¡ved him, Luthen distributed the stock to                    his

daughters; or (2)         if his wife survived him, Luthen gave the stock to his                 daughters

contrary to his will provisions. lt is noteworthy that Luthen's will,21 as it existed at the

time he created the trust agreement, already bequeathed the L&M stock to Terolle Ann

and Nancy Jo if Luthen's wife drd nof survive him; if Luthen's wife survived him, the

stock passed under the will provisions regarding Luthen's residuary estate.

         On appeal, Terolle Ann cites extrinsic evidence, but it corresponds only to
Luthen's intent in amending the trust rather than his intent behind this clause. Given the

patent ambiguity in the trust agreement, we sustain Terolle Ann's objection to the trial

court's order granting summary judgment for Ley, see Doggett, 345 S.W.3d at 99;

Myrick, 802 S.W.2d at 738, and on remand the parties will be afforded the opportunity to

present extr¡nsic evidence to support their respective interpretations of the provision.

See ln re EIIison Grandchildren Trust,261 S.W.3d at117; Eckels, 111 S.W.3d at696.

ln light of our holding, we need not address the parties' disagreement on                          whether

Luthen subsequently revoked this trust provision because the potential revocation is



        21   Because the will was before the trial court, we consider it because the trust provision at issue
references   ¡t.
relevant to Terolle Ann's declaratory-judgment claim and appeal only if Terolle Ann's

interpretation is correct. See Tex. R. App. P. 47.1   .



                                    V.   CONCLUSION

      We reverse the trial court's order granting summary judgment      ¡n   favor of Ley on

contestants' claim of undue influence, and we reverse the trial court's order admitting

the second codicil to probate. We remand the contestants' opposition to the second

codicil to the trial court for further proceedings. We also reverse the trial court's order

grant¡ng summary judgment in favor of Ley and denying summary judgment to Terolle

Ann regarding Luthen's trust provisions, and remand that matter to the trial court for

further proceedings.




Delivered and filed the 24th
day of November,2014.




                                            21
