                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-13-00570-CV
                           ____________________

                   IN THE ESTATE OF ADRIAN NEUMAN

_______________________________________________________            ______________

                       On Appeal from the County Court
                           Jefferson County, Texas
                           Trial Cause No. 105449
________________________________________________________            _____________

                          MEMORANDUM OPINION

      In this appeal from a proceeding in a probate matter, the appellant complains

that the trial court improperly denied his motion to transfer venue, and he argues

that the charge failed to properly submit the question of whether the decedent had

testamentary capacity when executing his will. We hold that the trial court properly

overruled the appellant’s motion to transfer venue and properly denied the

appellant’s objections to the charge. We affirm the trial court’s order denying the

appellant’s motion to contest the decedent’s will.




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                                     Background

      Adrian Neuman died in 2012. In his will, dated April 11, 2011, Neuman left

his entire estate to his daughters to the exclusion of his sons. Subsequently, Nancy

Hart, the independent executrix of Neuman’s estate and one of his daughters, filed

Neuman’s will for probate. In July 2012, the County Court ordered that Neuman’s

2011 will be admitted for probate.

      In November 2012, Kenneth Neuman filed a motion to contest his father’s

2011 will. In his motion, Kenneth claimed that his father was not of sound mind

when he executed the will. Initially, the trial court dismissed Kenneth’s attempt to

contest the will on the basis that his motion to contest the will was not timely, and

it then dismissed the case “due lack of evidence.” Kenneth appealed from those

rulings, and in 2013, we reversed and remanded the case for trial. In the Estate of

Neuman, No. 09-13-00076-CV, 2013 Tex. App. LEXIS 8490 (Tex. App.—

Beaumont July 11, 2013, no pet.).

      In September 2013, approximately two months before the trial of the case,

Kenneth filed a motion to transfer the proceedings to Orange County. In his

motion, Kenneth asserted that Jefferson County was not a county of proper venue,

and he asked the court to transfer the case to Orange County because Neuman, at

the time of his death, was living in a nursing home in Orange County. Following a

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hearing on Neuman’s motion, the trial court found that at the time of Neuman’s

death, Neuman was a resident of Jefferson County. Accordingly, the trial court

denied Kenneth’s motion to transfer venue.

      Subsequently, following a jury trial, the trial court asked the jury to decide

the following issue: “Did Adrian J. Neuman have testamentary capacity to sign the

Last Will and Testament dated April 11, 2011?” The instructions following this

question instructed the jury on the various factors that could be considered in

deciding if Neuman had testamentary capacity when his signed his will. The

instructions indicated the question of testamentary capacity concerned the

decedent’s testamentary capacity “at the time the decedent signs a will.” The jury

found that Neuman had testamentary capacity when he signed his 2011 will, and

based on the jury’s verdict, the trial court denied Kenneth’s motion to contest

Neuman’s will.

                                      Venue

      In issue one, Kenneth complains the proceedings should have been

transferred to Orange County. According to Kenneth, because Neuman was in a

nursing home located in Orange County when he died, Neuman’s domicile or fixed

place of residence—which is used to determine the proper venue for a probate

proceeding—was in Orange County. See Tex. Estates Code Ann. § 33.001 (West

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2014). 1 In response, Nancy argues that Kenneth’s motion to transfer was not timely

because he did not file his motion to transfer venue at the onset of the contest.

Additionally, Nancy contends that Neuman’s domicile or fixed place of residence

remained in Jefferson County after he moved to the nursing home, as Neuman was

living in Jefferson County before his health declined to the point that he required

the level of care provided at the nursing home.

      We agree with Nancy that Kenneth’s motion to transfer venue was untimely.

Rule 86(1) of the Texas Rules of Civil Procedure states that “[a]n objection to

improper venue is waived if not made by written motion filed prior to or

concurrently with any other plea, pleading or motion except a special appearance

motion provided for in Rule 120a.” Tex. R. Civ. P. 86(1). The record shows that

Kenneth did not file his motion to transfer venue concurrently or before he filed his

first plea, pleading or motion. Because Kenneth’s motion to transfer venue was

untimely, he waived his claim that Neuman’s domicile changed from Jefferson

County to Orange County shortly before he died. See id.; Jarvis v. Feild, 327

S.W.3d 918, 925 (Tex. App.—Corpus Christi-Edinburg 2010, no pet.) (holding
      1
       As of January 1, 2014, the former Texas Probate Code has been repealed
and replaced with the Texas Estates Code. See In the Estate of Hamner, No. 09-13-
00218-CV, 2015 Tex. App. LEXIS 1105, **7-8 n.2 (Tex. App.—Beaumont Feb. 5,
2015, no pet.); Leavitt v. Holbrook, No. 09-12-00303-CV, 2014 Tex. App. LEXIS
7476, **9-10 n.4 (Tex. App.—Beaumont July 10, 2014, no pet.). All citations
herein will be to the Texas Estates Code.
                                         4
that pro se litigant in probate proceeding waived her venue claim by failing to

comply with the requirements of Rule 86(1)); McGrede v. Coursey, 131 S.W.3d

189, 196 (Tex. App.—San Antonio 2004, no pet.) (concluding that appellant’s

venue complaint was waived in a guardianship proceeding governed by the Texas

Probate Code because the appellant failed to comply with the requirements of Rule

86(1)). We overrule Kenneth’s first issue.

                                   Jury Charge

      In issue two, Kenneth complains the trial court erred by submitting a charge

that asked about Neuman’s testamentary capacity at the time he executed his will.

The instructions at issue, submitted immediately following the question the jury

was asked to answer, explained:

            A decedent has testamentary capacity if, at the time the
            decedent signs a will, the decedent has:

            1. sufficient mental ability to understand that he is making a
               will;

            2. sufficient mental ability to understand the effect of his act in
               making the will;

            3. sufficient mental ability to understand the general nature and
               extent of his property;

            4. sufficient mental ability to know his next of kin and natural
               objects of his bounty and their claims on him; and


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             5. sufficient memory to collect in his mind the elements of the
                business to be transacted and to be able to hold the elements
                long enough to perceive their obvious relation to each other
                and to form a reasonable judgment as to these elements.

      Before the trial court submitted the case to the jury, Kenneth objected to the

charge. At trial, and on appeal, Kenneth argues that the charge improperly focuses

on whether Neuman possessed testamentary capacity on April 11, 2011, the date

he signed the will; instead, Neuman argues that the charge should have inquired

whether Neuman had testamentary capacity prior and subsequent to the periods

surrounding the execution of the will. The trial court overruled Kenneth’s

objection to the charge.

      With respect to when a testator must possess testamentary capacity to

execute a valid will, the Texas Supreme Court has explained that the issue

concerns the condition of the testator’s mind on the date the will was executed. Lee

v. Lee, 424 S.W.2d 609, 611 (Tex. 1968) (emphasis added). In this case, the trial

court’s instruction regarding Neuman’s testamentary capacity follows Texas law,

as the charge is consistent with Texas cases that have explained that testamentary

capacity means the testator has sufficient mental ability to:

          (1) understand the business in which he is engaged; (2) understand
          the effect of making his will; (3) understand the general nature and
          extent of his property; (4) know his next of kin and the natural
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         objects of his bounty and the claims upon him; and (5) collect in
         his mind the elements of the business to be transacted and hold
         them long enough to perceive their obvious relation to each other
         and to form a reasonable judgment about them.

In the Estate of Lynch, 350 S.W.3d 130, 136 (Tex. App.—San Antonio 2011, pet.

denied); and see Tieken v. Midwestern State Univ., 912 S.W.2d 878, 882 (Tex.

App.—Fort Worth 1995, no pet.).

      In this case, the charge properly tasked the jury with deciding whether

Neuman possessed testamentary capacity at the time he executed his 2011 will.

The charge used in Neuman’s case is consistent with the charge the Committee on

Pattern Jury Charges suggests is appropriate in a will contest case. See Comm. on

Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Will Contests

PJC 230.2 (2014). While the “Texas Pattern Jury Charges are not ‘law,’ they are

heavily relied upon by bench and bar and based on what the State Bar Committee

perceives the present law to be.” THI of Tex. at Lubbock I, LLC v. Perea, 329

S.W.3d 548, 569 (Tex. App.—Amarillo 2010, pet. denied) (citing H.E. Butt

Grocery Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.—San Antonio 1996),

aff’d, 985 S.W.2d 22 (Tex. 1998)).

      We hold the trial court properly overruled the objection that Neuman made

to the charge, and we overrule the arguments that he makes in issue two. Because


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Kenneth’s issues are without merit, the trial court’s order denying Kenneth’s

motion to contest his father’s will is affirmed.

      AFFIRMED.


                                                   _________________________
                                                        HOLLIS HORTON
                                                             Justice

Submitted on November 10, 2014
Opinion Delivered May 14, 2015

Before Kreger, Horton, and Johnson, JJ.




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