      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-03-00389-CV



                                 Lawrence Cranberg, Appellant

                                                  v.

                         Herbert Wilson and Judith Wilson, Appellees




                FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
               NO. 79412, HONORABLE GUY S. HERMAN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This is an appeal from an order dismissing a will contest for lack of standing. Dr.

Lawrence Cranberg, appellant, contested the will of Lottie Irene Gradick. Appellant admitted at an

evidentiary hearing that he was not an heir, devisee, spouse, or creditor of the estate and that he had

no pecuniary interest in the estate. The probate court dismissed the will contest for lack of standing.

We will affirm.


                                            Background

               Decedent, Lottie Irene Gradick, died testate in May 2003 at age ninety-four in Travis

County. Appellee Herbert C. Wilson, Jr. was named executor under the will and filed an application
to probate the will. Decedent was never married and had no children. The will made a bequest of

ten thousand dollars to a church in Austin and the remainder was left to appellee Judith Wilson, the

decedent’s grandniece.

               Appellant filed a contest to the will, which Mr. Wilson moved the court to dismiss

for lack of standing. The probate court held an evidentiary hearing at which appellant testified that

he was not an heir, devisee, spouse, or creditor of the estate and that he had no pecuniary interest in

the estate. Appellant introduced an unsigned codicil to the will that purported to establish a

scholarship fund for female students at Samford and Baylor Universities and asserted that decedent

was considering an amendment to her will but was prevented by Mr. Wilson from further discussions

with appellant concerning any changes. In May 2001, Mr. Wilson barred appellant from further

contact with decedent through decedent’s power of attorney. Appellant urged the probate court to

grant him standing predicated on the “equitable principle that no one should be allowed to be

unjustly enriched as a result of wrongful conduct.” Specifically, appellant alleges that decedent’s

death was wrongful and was caused by the violation of decedent’s rights under the “Rights of the

Elderly.” Tex. Hum. Res. Code Ann. § 102.003 (West 2003). Further, appellant alleges that

decedent’s funds were used to “confine her, and to intercept all visitors, phone calls and letters,” and

that this constituted the criminal offense of misapplication of fiduciary property. Tex. Pen. Code

Ann. § 32.45 (West 2003). The probate court ruled that appellant was not a person interested in the

estate and thus had no standing to file a contest. The court then dismissed the will contest and

admitted the will to probate.




                                                   2
                                              ANALYSIS

Standing

                To maintain an action, a party must have standing to litigate the matters in issue.

Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984). When the standing of a will contestant is

challenged, the burden of proof is on the contestant to present sufficient evidence to prove the

existence of standing. Womble v. Atkins, 331 S.W.2d 294, 297 (Tex. 1960); A & W Indus., Inc. v.

Day, 977 S.W.2d 738, 741 (Tex. App.—Fort Worth 1998, no pet.). The existence of standing is a

question of law. A & W Indus., 977 S.W.2d at 741. We review questions of law de novo. Texas

Dep’t, of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

                The probate code specifies in relevant part that “any person interested in an estate may

. . . file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and

to be heard upon such opposition .” Tex. Prob. Code Ann. § 10 (West 2003). “Persons interested”

is defined as “heirs, devisees, spouses, creditors, or any others having a property right in, or claim

against, the estate being administered.” Id. § 3(r) (West 2003).

                At the evidentiary hearing held by the probate court, appellant testified (and has since

reiterated in his brief) that he was neither related to nor a creditor of the decedent. Further, appellant

testified that he would not receive any monetary benefit from the estate under the will or under the

rules of descent and distribution were the will to be held invalid. Finally, appellant would not be a

beneficiary under the codicil that appellant alleges decedent was considering signing. Accordingly,

appellant is not an “interested person” as the term is defined by statute and therefore lacks standing

to contest the will. Id.


                                                    3
               Appellant urges, however, that we create a new, extra-statutory basis of standing to

allow a will contest where failure to do so would allow “unjust enrichment as the result of wrongful

conduct.” See Johanson, S. M., Texas Probate Code Ann. § 41 (West 2002). Appellant seems to

refer to a provision of the probate code that is narrowly tailored to prevent one “who is convicted and

sentenced as a principal or accomplice in willfully bringing about the death of the insured” from

collecting as a beneficiary on the insured decedent’s policy. Tex. Prob. Code Ann. § 41(d) (West

2003).

               Appellant claimed at the evidentiary hearing that decedent’s death was wrongfully

caused by appellees through their violation of decedent’s rights under “The Rights of the Elderly”

and their misappropriation of fiduciary property. Tex. Hum. Res. Code Ann. §102.003; Tex. Pen.

Code Ann. § 32.45. There exists no evidence in the record beyond appellant’s testimony to support

any of these accusations, and even if there were, section 41(d) of the probate code only applies to

those convicted and sentenced of having wrongfully caused the death of the decedent and only bars

collection of insurance proceeds. Tex. Prob. Code Ann. § 41(d).

               Nonetheless, if all of appellant’s allegations were true and satisfied section 41(d) of

the probate code, appellant would still not be an “interested party” under Texas law. “It is not the

policy of the State of Texas to permit those who have no interest in a decedent’s estate to

intermeddle therein.” Womble, 331 S.W.2d at 298. The only interest that grants standing to contest

a will is a pecuniary one that will be affected by the probate or the defeat of the will. Maurer v.

Sayre, 833 S.W.2d 680, 682 (Tex. App.—Fort Worth 1992, no writ). “In the absence of such interest

a contestant is a mere meddlesome intruder.” Abrams v. Ross’ Estate, 250 S.W. 1019, 1021 (Tex.


                                                  4
Comm’n App. 1923, judgm’t adopted). The burden is on the person contesting a will to allege, and

if required, to prove that he has some legally ascertained pecuniary interest, real or prospective,

absolute or contingent, that will be impaired or benefitted, or in some manner materially affected,

by the probate of the will. Id. In contrast, an interest resting on sentiment or sympathy, or any other

basis other than gain or loss of money or its equivalent, is insufficient. Id. Appellant clearly does

not fall within the class of persons granted standing to contest the decedent’s will under existing

Texas law. Tex. Prob. Code Ann. § 10. We decline his invitation to expand that class. Appellant’s

point of error is overruled.


Sanctions

               Appellees filed a cross-point urging that this appeal is frivolous and seeking damages

for attorney’s fees and costs. See Tex. R. App. P. 45. “Appellate sanctions will be imposed only if

the record clearly shows the appellant has no reasonable expectation of reversal . . . .” Faddoul,

Glasheen & Valles, P.C. v. Oaxaca, 52 S.W.3d 209, 212 (Tex. App.—El Paso 2001, no pet.); Smith

v. Brown, 51 S.W.3d 376, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Mid-Continent

Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 396-97 (Tex. App.—San Antonio 1999, no

pet.). A showing of bad faith is not necessary to impose sanctions under rule 45. Smith, 51 S.W.3d

at 381; Compass Exploration, Inc. v. B-E Drilling Co., 60 S.W.3d 273, 279 (Tex. App.—Waco

2001, no pet.); Mid-Continent Cas. Co., 2 S.W.3d at 396-97. Contra Oaxaca, 52 S.W.3d at 212.

Our decision regarding the frivolous nature of the suit is guided by our assessment of the record from

the perspective of appellant. Oaxaca, 52 S.W.3d at 213. We then determine whether reasonable

grounds exist to believe that the judgment should be reversed. Id. Although appellant proceeded

                                                  5
pro se, he is held to the same standards as licensed attorneys. Brown v. Texas Employment Comm’n,

801 S.W.2d 5, 8 (Tex. App.—Houston [14th Dist.] 1990, writ denied).

               The law governing this case is clear. Furthermore, appellant admitted that he lacked

standing to contest the will according to the statute and that he was seeking a change to or an

extension of the law. It is difficult, therefore, to conclude that appellant, under these circumstances,

had “a reasonable expectation of reversal.” Imposition of sanctions, however, is within our

discretion. Clopton v. Pak, 66 S.W.3d 513, 517 (Tex. App.—Fort Worth 2001, pet. denied);

Angelou v. African Overseas Union, 33 S.W.3d 269, 282 (Tex. App.—Houston [14th Dist.] 2000,

no pet.). After reviewing the record and appellant’s brief, we decline to impose sanctions in this case

and overrule appellees’ cross-point.


                                          CONCLUSION

               Appellant does not fall into the limited class of persons entitled to contest a will under

Texas law. The probate court’s order dismissing the will contest is affirmed and appellees’ cross-

point is overruled.




                                               David Puryear, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: January 23, 2004


                                                   6
