

 
Opinion issued March 1, 2012.

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00542-CV
———————————
 
In Re Estate
of Gerald Pat Arrington, Deceased
 

 

 
On Appeal from the 506th District Court 
Grimes County, Texas

Trial Court Case No. 30315
 

 
OPINION
This is a
will contest case.  The testator’s wife,
Brenda Arrington, challenges the trial court’s judgment, rendered on a jury
verdict, admitting the will to probate and appointing the testator’s daughter,
Patricia Daley, the executrix of the will. 
The jury found that the disputed will was validly executed and the
testator, Gerald Pat Arrington, possessed testamentary capacity. On appeal,
Brenda contends that no evidence supports the jury’s findings.  We affirm.


 
Background
Two days
after doctors diagnosed him with an inoperable brain tumor, Gerald Pat
Arrington (“Pat”) executed a self-proved will naming his daughter, Patricia, as
the independent executrix and sole beneficiary of his estate.  See
Tex. Prob. Code Ann. § 59(a), (b) (West 2003) (allowing for wills to be
self-proved by affidavits of testator and subscribing witnesses meeting certain
requirements).  As
recited in his will, Pat was married at the time to Brenda Arrington, but they
were separated pending a divorce.  The
couple had no children together.  Pat’s
will names his children from previous relationships:
Michael Lee Arrington, Blake Jon Arrington, Patricia Jacqueline Arrington
Daley, Lora Lara, and Jennifer Gale Arrington. 
Although Pat’s final will acknowledges each of his children and his wife
Brenda, Pat made no provision for any of them save Patricia.  
Pat executed
his final will at a bank, on December 27, 2004, in the presence of two
subscribing witnesses and a notary. 
Appended to Pat’s will are sworn affidavits from Rachael Wells and Deanie Vezurk, the two
subscribing witnesses, averring to the requirements set forth in section 59(a)
of the Texas Probate Code for self-proving affidavits.  See
Tex. Prob. Code Ann. § 59(a).  The subscribing witnesses and the notary,
Sarah Nobles, testified at trial to the facts set forth in the affidavits: that
Pat signed his will in the presence of two subscribing witnesses, the witnesses
signed the will in his presence, and the subscribing witnesses were over the
age of fourteen.  See id.  
The witnesses
and the notary also testified to Pat’s mental capacity on the date he executed
his will.  Vezurk
recounted that Pat had lived near her and, based on her interactions with him,
he appeared of sound mind the day he executed his will.  Wells testified that she was not well
acquainted with Pat, but that Pat understood that he was executing his final
will.  Finally, Nobles testified that she
had frequently interacted with Pat during her twenty years as a bank employee
and, based on her familiarity with him, nothing about Pat’s demeanor was out of
the ordinary the day he executed his will. 
Nobles recalled that Pat had told her that he needed to get his last
will and testament notarized that day.  
Pat suffered from headaches as a result of his tumor and
took steroids to allay his symptoms. 
Despite his diagnosis, witnesses testified that Pat was mentally
competent in December 2004, and he had not experienced memory loss as a result
of his condition.  Pat’s sisters
testified that Pat had maintained his mental faculties until his death. 
In addition to the brain tumor, Pat had been suffering from
the effects of an electric shock accident in 1983.  Pat had difficulty speaking and an unsteady
gait following the accident.  Pat’s
condition improved over time. 
Rehabilitative therapy had enabled Pat to work cattle, ride horses, and
drive.  He continued to engage in these
activities until 2005, when treatment for his tumor began to impede his daily
activities.  Pat died in December 2005. 
Witnesses
also testified about the nature of Pat’s family relations.  The executrix, Patricia, had lived with Pat
since her birth.  After she married David
Daley, the couple resided at Pat’s home. 
The Daleys helped Pat care for his land and
work cattle.  Pat’s sonm,
Blake, testified that Pat had told him that Pat would will
his entire estate to Patricia.  Blake
reasoned that Pat did so because Patricia was Pat’s only “stable” child, acted
as the family matriarch, and could be depended on to keep Pat’s land in the
family.  Blake testified that Pat did not
devise his separate property to his wife Brenda because Brenda had not lived
with Pat during the four years preceding his death; Pat had become certain that
Brenda would sell his property if he left it to her.  
After Pat’s
death, Patricia applied to probate his final will.  Brenda contested the application.  A jury found in favor of Patricia,
determining that (1) the proffered will was the will that Pat had executed in
December 2004, (2) Pat validly executed the will, and (3) Pat possessed
testamentary capacity on the day he executed it.  Brenda moved for judgment notwithstanding the
verdict and a new trial. The trial court denied Brenda’s motions and admitted
the will to probate.  On appeal, Brenda
maintains that the trial court erred in admitting the will to probate because
no evidence supports the jury’s findings that the proffered will was valid and
that Pat had testamentary capacity on the day he executed it.  
Standard of Review
A trial court may disregard a jury’s verdict and
render a judgment notwithstanding that verdict if the evidence is legally
insufficient to support the jury’s findings or a directed verdict would have
been proper because a legal principle precludes recovery.  Tex.
R. Civ. P. 301; see Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991); Williams v.
Briscoe, 137 S.W.3d 120, 124 (Tex. App.—Houston
[1st Dist.] 2004, no pet.). 
The test for legal sufficiency is “whether the evidence at trial would
enable reasonable and fair‑minded people to reach the verdict under
review.”  City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005).  In making
this determination, we credit favorable evidence if a reasonable fact-finder
could and disregard contrary evidence unless a reasonable fact-finder could
not.  Id.  If the evidence falls within the zone of
reasonable disagreement, we may not substitute our judgment for that of the
fact‑finder.  Id. at 822.  
Validity of the Will
To admit a
will to probate, a trial court must find that it is valid.  Guthrie v. Suiter, 934 S.W.2d 820, 829
(Tex. App.—Houston [1st Dist.] 1996, no writ).  Patricia, the proponent of the will, had the
burden to establish validity.  See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983); Douthit v. McLeroy,
539 S.W.2d 351, 352 (Tex. 1976) (per curiam).  
To be valid,
a will must conform to the requirements set forth in section 59(a) of the
Probate Code.  Tex. Prob. Code Ann. § 59(a).  With
exceptions inapplicable here, section 59(a) provides that a will is valid if it
is (1) in writing, (2) signed by the testator, and (3) attested by two or more
credible witnesses above the age of fourteen years, who write their signatures
in the testator’s presence.  Id. 
Section 59(a) further provides that a will may be made “self-proved, and
the testimony of the witnesses in the probate thereof may be made unnecessary,
by the affidavits of the testator and attesting witnesses, made before an
officer authorized to administer oaths.” 
Id.  A self-proved will is
prima facie evidence that the will was properly executed.  See
Guthrie, 934 S.W.2d at 829; see also Bracewell
v. Bracewell, 20 S.W.3d 14, 26 (Tex. App.—Houston
[14th Dist.] 2000, no pet.). 
Accordingly, a self-proved will may be admitted to probate without the
testimony of any subscribing witnesses. Tex.
Prob. Code Ann. § 59(c); Guthrie, 934 S.W.2d at 829.  
Pat executed
his final will in the presence of two witnesses and a notary.  Appended to his will are affidavits from
Rachael Wells and Deanie Vezuek,
the two subscribing witnesses, averring to the language provided by section
59(a) for self-proving affidavits.  See Tex.
Prob. Code Ann. § 59(a), (b).  Because Pat’s will contains affidavits from
the subscribing witnesses reciting the language set forth in section 59(a), it
is a self-proved will.  Id. 
Thus, Patricia’s proffer of the will itself was prima facie evidence
that the will was validly executed; she needed no further proof to demonstrate
its validity.  Tex. Prob. Code Ann. § 59(c). 
Nevertheless, Patricia presented testimony at trial from both
subscribing witnesses.  They confirmed
the facts set forth in their affidavits, recalling that they had affixed their signatures
to Pat’s will in his presence and that Pat had signed his will in their
presence.  Both witnesses confirmed that
they were over the age of fourteen.  
Brenda
challenges the jury’s finding of valid execution because the subscribing
witnesses did not testify that Pat signed each page of the proffered will nor
did they read the contents of the will. 
But the statute does not require that a will’s contents be published to
its witnesses.   See Tex. Prob.
Code Ann. § 59(a); Brown v. Traylor, 210 S.W.3d 648, 664 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (publication
not prerequisite to validity; contents must be proved only if will cannot be
produced in court).  Nor does the Probate
Code require testimony that the testator initialed every page of his final
will.  See Tex. Prob. Code Ann.
§ 59(a) (will not wholly in testator’s handwriting shall be signed).  Both witnesses executed affidavits that track
the format within Chapter 59, and testified that Pat declared that they were
witnesses to his last will, which Pat executed on December 27, 2004.  Although Brenda implies in her reply brief
that the will Patricia sought to admit to probate was not the December 27 will,
the jury expressly found that it was. 
The affidavits and testimony of the testamentary witnesses support the
jury’s finding.
The proffered
will complies with all statutory requirements for a self-proved will.  As the will was executed in compliance with
the solemnities prescribed by the Probate Code, we hold that it was validly
executed.  
Testamentary Capacity 
Testamentary
capacity means that the testator has possession of sufficient mental ability at
the time of execution of the will (1) to understand the effect of making a will
and the general nature and extent of the testator’s property, (2) to know the
testator’s next of kin and the natural objects of his bounty, and (3) to have
sufficient memory to assimilate the elements of executing a will, to hold those
elements long enough to perceive their obvious relation to each other, and to form
a reasonable judgment as to them.  Prather v. McClelland, 76
Tex. 574, 584-85, 13 S.W. 543, 545–46 (1890); Guthrie, 934 S.W.2d at 829; Wilkinson
v. Moore, 623 S.W.2d 662, 663–64 (Tex. Civ. App.—Houston [1st Dist.] 1981,
writ dism’d). 
In a will contest challenging testamentary capacity, the issue is the
condition of the testator’s mind on or around the date he executed the
will.  Wilkinson, 623 S.W.2d at 663–64.  A challenger to the will’s validity may also
rely on evidence of incompetence on occasions both before and after the
execution date if the condition persisted and had some probability of being
“the same condition which obtained at the time of the will’s making.”  Guthrie,
934 S.W.2d at 830; Croucher, 660 S.W.2d at 57.   
The jury in
this case heard both kinds of evidence. 
The jury heard direct evidence of Pat’s mental condition on the date the
will was executed.  Both subscribing
witnesses testified that Pat was of sound mind when he signed his will at the
bank.  One subscribing witnesses had known
Pat for twenty years.  She testified that
nothing about Pat’s demeanor was out of the ordinary that day.  The notary also provided direct evidence of
Pat’s mental condition.  She testified
that, on the date Pat signed his will, Pat was of sound mind, was capable of
conversation, and answered her questions. 
She further recounted that Pat told her that he was signing his will and
that it needed to be notarized.  
The jury in
this case also heard testimony about Pat’s health problems, including testimony
about a 1983 electric shock accident, his headaches, and his declining health
in 2005.  Brenda conceded that Pat
performed his daily work after the accident; he worked cattle on horseback.  Members of Pat’s family testified that Pat
possessed all his mental faculties after the accident, noticing no change in
his daily behavior beyond some difficulty walking.  The jury heard testimony that, in December
2004, Pat suffered from headaches and was taking steroids to treat the symptoms
of his brain tumor.  Pat’s sisters, a
son, a daughter, and a co-worker each testified that, despite this condition,
Pat acted like himself during that time. 
They recalled that Pat provided them with driving directions to his
doctor’s office.  After doctors biopsied
his tumor in 2005, Pat became partially paralyzed.  Pat no longer cared for himself but relied on
his family to care for him. 
Nevertheless, Pat’s sisters testified that he maintained his mental faculties
until his death.  
Brenda argues
that the evidence that Patricia adduced is legally insufficient.  She claims that, because no evidence
demonstrates that Pat discussed his children or the approximate nature of his
property with the witnesses on the date he executed his will, Pat lacked the
capacity to make a judgment about bequeathing his property.  She asserts that Pat did not know who his
children were because his will names a child whom he never adopted in a legal
proceeding, and it omits an alleged sixth child.  But a finding of testamentary capacity does
not hinge entirely on direct evidence that the testator discussed the details
of his children, wealth, or disposition at the time he signed his will.  See
Prather, 76 Tex. At
584-85, 13 S.W. at 545–46.  The
jury heard direct evidence of Pat’s general mental condition on the day he
executed his will and the attending months before and after: this evidence
supports its determination that Pat knew that he was executing his will and
that he had deliberately chosen Patricia to be his sole beneficiary.  The evidence at trial “would enable
reasonable and fair-minded people to reach the verdict under review.”  See
City of Keller, 168 S.W.3d at 827.  
We hold that
the evidence is legally sufficient to support the jury’s finding of
testamentary capacity.  See Collins
v. Smith, 53 S.W.3d 832, 843 (Tex. App.—Houston [1st Dist.] 2001, no pet.)
(testimony that testator was of sound mind and knew
what he was doing when he executed will was sufficient to remove any suspicion
surrounding wills execution); Horton v.
Horton, 965 S.W.2d 78, 86 (Tex. App.—Fort Worth 1998, no pet.) (evidence testator had taken pain medication and experienced
hallucinations was not sufficient to show incapacity where witnesses testified
testator was of sound mind when he executed will and no direct evidence demonstrated
he experienced hallucinations at time he signed will).


 
Conclusion
          The
trial court properly upheld the jury’s findings on validity and testamentary
capacity.  It properly admitted the will
to probate.  We therefore affirm the
judgment of the trial court. 
 
 
                                                                      Jane
Bland
                                                                      Justice

 
Panel consists of Justices Keyes, Bland, and
Sharp.
 
 

