                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-18-00737-CV

            IN THE MATTER OF THE ESTATE OF Elaine Eisele ADAMS, Deceased

                   From the 216th Judicial District Court, Gillespie County, Texas
                                      Trial Court No. 14997
                          Honorable N. Keith Williams, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: July 17, 2019

AFFIRMED

           Duane Allen Adams appeals the trial court’s order admitting Elaine Eisele Adams’s last

will and testament and first codicil to her last will and testament to probate. Duane contends the

trial court erred in concluding Elaine’s handwritten letter to her attorney dated September 21, 2015

was not admissible to probate as a codicil because: (1) the appellees, Kara Armes and Justin Seitz,

judicially admitted the letter indicated Elaine’s wish to distribute her entire estate to Duane; and

(2) the letter was written with testamentary intent. We affirm the trial court’s order.

                                            BACKGROUND

           Elaine passed away on February 6, 2017. Both her husband and her daughter predeceased

her. Duane is Elaine’s son, and Kara and Justin are the children of Elaine’s daughter.
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        On May 4, 2017, Kara and Justin filed an application to probate Elaine’s last will and

testament dated November 28, 1994, and the first codicil to the will dated June 5, 2015. Duane

filed an opposition to the application asserting the will and codicil were modified by a letter Elaine

wrote to her attorney dated September 21, 2015. Kara and Justin filed a contest to the probate of

the September 21, 2015 letter asserting it was not executed with testamentary intent.

        On September 22, 2017, the trial court held a hearing on the application, opposition, and

contest. At the hearing, the parties stipulated the will and first codicil were admissible to probate.

The parties also stipulated the September 21, 2015 letter was in Elaine’s handwriting and signed

by her; however, Kara and Justin continued to argue the letter was not executed with testamentary

intent. The letter stated:

            I received your letter today.

            According to my will Sec 4:3 Either will may be revoked at any time at the sole
        discretion of the maker of same.

           When you wrote the codicil for me making Duane the inheritor of all my
        possessions at the time of my death, I thought that was all that was necessary.

        After reviewing the letter, the trial court concluded it was not written with testamentary

intent, reasoning:

            In my book, without question, this does not have any proof of testamentary
        intent. There’s no indication she intended this to be her will. For one thing, there’s
        a couple of mistakes in there. She says she understood it may be revoked. She
        didn’t say she wants to revoke a will, her will. She said, when you wrote the codicil
        for me making Duane the inheriter [sic] of all my possessions, clearly the codicil
        does not make Duane the inheriter [sic] of all her possessions. So that’s a genuine
        mistake of understanding on her part. And under this case law, just — just, for
        example, very specifically in the Schiwetz case it says, instructions or directions to
        attorneys to prepare a new will or codicil to carry out the designated changes are
        not themselves intended to be wills or codicils.

            So the Court finds that this letter from Ms. Adams to Mr. Sauer does not have
        the requisite testamentary intent and should not be — shall not be construed in any
        form or fashion to be a — an addendum, a codicil, or any — have any effect on the
        underlying will which is the subject of the probate.


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Due to some logistical issues, the trial court’s order was not signed until July 10, 2018. Duane

appeals.

                                       JUDICIAL ADMISSION

       In his first two issues, Duane contends Kara and Justin judicially admitted Elaine’s letter

to her attorney indicated she wished to distribute her entire estate to him. Accordingly, Duane

asserts Kara and Justin could not dispute that the letter expressed her “testamentary wishes” that

Duane inherit her entire estate.

       Initially, we do not believe a person can judicially admit testamentary intent because such

intent must be determined from the language of the document. See Shriner’s Hosp. for Crippled

Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980) (“The intent of the testator, however,

must be ascertained from the language used within the four corners of the instrument.”); Hinson

v. Hinson, 280 S.W.2d 731, 733 (Tex. 1955) (noting testamentary intent requires an intention to

create a revocable disposition of property to take effect after the person’s death). Even assuming

such a judicial admission is possible, Justin and Kara did not make any such judicial admission.

       “A judicial admission is a formal waiver of proof that dispenses with the production of

evidence on an issue and bars the admitting party from disputing it.” Bliss & Glennon Inc. v.

Ashley, 420 S.W.3d 379, 393 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Laredo Med. Group

Corp. v. Mireles, 155 S.W.3d 417, 429 (Tex. App.—San Antonio 2004, pet. denied). “Elements

required for a judicial admission are: (1) a statement made during the course of a judicial

proceeding; (2) that is contrary to an essential fact or defense asserted by the person making the

admission; (3) that is deliberate, clear, and unequivocal; (4) that, if given conclusive effect, would

be consistent with public policy; and (5) that is not destructive of the opposing party’s theory of

recovery.” Bliss & Glennon Inc., 420 S.W.3d at 393; Laredo Med. Group Corp., 155 S.W.3d at

429. To determine whether a statement is a judicial admission, the statement must be read and


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evaluated in context. Bliss & Glennon Inc., 420 S.W.3d at 393; Schronk v. City of Burleson, 387

S.W.3d 692, 711 (Tex. App.—Waco 2009, pet. denied).

       Duane asserts the following sentence from the background section of the contest filed by

Kara and Justin constituted a judicial admission: “This letter indicates that the Decedent wished to

distribute her entire estate to DUANE, to the exclusion of JUSTIN and KARA.” Duane’s

assertion, however, ignores the section of the pleading entitled “Contest to Probate of September

21, 2015 Letter” which states:

           JUSTIN and KARA contest and oppose the request for probate of the
       September 21, 2015 letter from Declarant to Anthony Sauer set forth in the
       Opposition filed by DUANE. The September 21, 2015 letter was not executed with
       testamentary intent and does not meet the legal requirements of a holographic Will
       or Codicil under Texas law.

Accordingly, reading the pleading in its entirety and the sentence relied on by Duane in context,

we hold the sentence does not constitute a judicial admission of testamentary intent. Duane’s first

two issues are overruled.

                                     TESTAMENTARY INTENT

       In his third issue, Duane challenges the trial court’s determination that Elaine’s letter to her

attorney was not written with testamentary intent.

       “To be a codicil, an instrument must be executed with testamentary intent.” In re Estate

of Hendler, 316 S.W.3d 703, 708 (Tex. App.—Dallas 2010, no pet.). Testamentary intent is the

intent to create a revocable disposition of property that will take effect after death. Hinson, 280

S.W.2d at 733; In re Estate of Hendler, 316 S.W.3d at 708. Construction of a purported

testamentary instrument is a question of law when it contains no ambiguity. In re Estate of

Silverman, No. 14-18-00256-CV, 2019 WL 2352457, at *4 (Tex. App.—Houston [14th Dist.] June

4, 2019, no pet. h.); In re Estate of Allen, 301 S.W.3d 923, 928 (Tex. App.—Tyler 2009, pet.

denied).


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       In this case, Elaine’s letter to her attorney reflected her confusion about the effect of the

first codicil to her will. The first codicil only changed the section of Elaine’s will pertaining to the

appointment of executors. The original will appointed her husband as executor followed by the

appointment of her daughter, Duane, and Justin as successors in that order. The codicil appointed

Duane as executor followed by the appointment of Duane’s daughter as successor. The codicil

did not make any changes to the disposition of Elaine’s estate. Since Elaine’s letter was in response

to a letter from her attorney, Elaine’s question was likely prompted by information in her attorney’s

letter regarding her will and codicil. Therefore, Elaine’s letter is similar to letters written to

attorneys regarding changes to an existing will which have been held not to be executed with

testamentary intent. See In re Estate of Schiwetz, 102 S.W.3d 355, 364 (Tex. App.—Corpus

Christi 2003, pet. denied) (“Instructions or directions to attorneys to prepare a new will or codicil

that carry out the designated changes are not themselves intended to be wills or codicils.”); Price

v. Huntsman, 430 S.W.2d 831, 833 (Tex. Civ. App.—Waco 1968, writ ref’d n.r.e.) (holding letter

to attorney containing instructions to prepare a new will or codicil was not admissible to probate

as a codicil). Accordingly, we hold the trial court did not err in concluding Elaine’s letter was not

written with testamentary intent, and Duane’s third issue is overruled.

                                              CONCLUSION

       The trial court’s order is affirmed.

                                                   Irene Rios, Justice




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