Roy v. McMaster (Tex.App.- Houston [1st Dist.] Sep. 17, 2009)(opinion on rehearing by
(wills were not contractual in nature, noncompliance with Probate Code)
We sustain Ray's third issue. Having determined the wills are not contractual
wills due to their failure to comply with the Probate Code, it is necessary to
reverse the summary judgment that determined the wills were contractual
wills. We need not, therefore, address Ray's alternative arguments in his first
and second issues that assert the wills fail to meet the common law
requirements for contractual wills.
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Elsa Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: Hon. William McCulloch
OPINION ON REHEARING
Appellee, Ronald Lee McMaster, has filed a motion for rehearing and for en banc
reconsideration of our opinion issued on June 18, 2009. We withdraw our opinion and
judgment of June 18, 2009 and substitute this opinion and judgment in their place.
Because we issue a new opinion in connection with the denial of rehearing, McMaster's
motion for en banc reconsideration of our prior opinion is moot. Richardson-Eagle, Inc. v.
William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex. App.--Houston [1st Dist.] 2006, pet.
Appellant, Mary Rochene Ray, appeals from the trial court's summary judgment in favor of
McMaster. The trial court determined that, as a matter of law, the 1992 wills of Ernest and
Velma Alley were contractual and that McMaster was the beneficiary. In three issues, Ray
contends the trial court erred by determining the wills were contractual wills. Ray asserts
the wills fail to meet the requirements of the Probate Code in that they do not describe
the material provisions of the contract. Alternatively, Ray claims the wills fail to meet the
two common law requirements for contractual wills in that the wills grant a fee simple
estate and do not provide for a plan of distribution that treats the estates as one estate.
We conclude the wills are not contractual wills because they fail to meet the requirements
of the Probate Code. Therefore, after Velma's death, Ernest could properly bequeath his
property to Ray instead of McMaster. We reverse and render judgment in favor of Ray.
Ernest and Velma Alley, a married couple with no children, executed separate wills in
1992. Ernest's 1992 will provides,
1. General Gift. I devise and bequeath all of my property, both real and personalty, as
(A) One Hundred percent (100%) to my spouse, VELMA FRANCES ALLEY, . . . if my
spouse survives me;
(B) If my spouse predeceases me, then equally to "my nephew" who survives me, per
stirpes. At present, for purposes of this WILL, my nephew is:
(1) RONALD LEE MC MASTER . . . .
2. General Gift. If none of the above noted beneficiaries survive me, then all of my
residuary estate shall pass to my heirs.
. . . .
8. Contract With Spouse. I hereby declare that I have an oral and/or written agreement
with my spouse as to the disposition which may be made of my property, any property
taken under this Will or my spouse's property upon the death of either of us. We have
identical, or legally similar Wills, intending thereby to be contractually bound.
Velma's will contains identical provisions except she names Ernest as her spouse in
paragraph 1(A). After she died in October 1994, Velma's will was probated. Ernest took
her property under the terms of her will.
Ernest executed a new will in 1999, revoking his 1992 will. The 1999 will devised
Ernest's estate to Ray, Velma's niece. After Ernest died in 2001, Ray applied for probate
of Ernest's 1999 will. Ray was named executor of Ernest's estate. McMaster filed this suit
contending that, by making the 1999 will, Ernest breached the contract he had with
Velma because the 1992 will constituted a contract between Ernest and Velma to
bequeath all their property to McMaster. McMaster sought to set aside the order
probating Ernest's 1999 will and to impose a constructive trust in his favor on Ernest's
Ray filed a motion for summary judgment, asserting that, as a matter of law, the 1992
wills were not contractual and seeking a final summary judgment in her favor. The trial
court denied Ray's motion. Almost two years later, McMaster filed a motion for partial
summary judgment, claiming that the 1992 wills were contractual as a matter of law. Ray
filed a response. The trial court granted McMaster's motion for summary judgment and
severed that portion of the case dealing solely with whether the 1992 wills were
contractual wills. Ray appealed.
Standard of Review
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). Summary judgment is proper only when a movant establishes that
there is no genuine issue of material fact and that the movant is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, we must indulge
every reasonable inference in favor of the nonmovant, take all evidence favorable to the
nonmovant as true, and resolve any doubts in favor of the nonmovant. Valence Operating
Co., 164 S.W.3d at 661.
When both sides move for summary judgment and the trial court grants one motion and
denies the other, we review the summary judgment evidence presented by both sides
and determine all questions presented. Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.
1997); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411-12 (Tex. App.--Houston [1st
Dist.] 1998, no pet.). We render such judgment as the trial court should have rendered.
Agan, 940 S.W.2d at 81; Rubalcada, 960 S.W.2d at 412.
Challenging the trial court's determination that the wills were contractual wills, Ray claims
the wills do not meet the requirements of the Probate Code.
A. The Probate Code
Section 59A of the Probate Code, entitled "Contracts Concerning Succession," provides,
(a) A contract to make a will or devise, or not to revoke a will or devise, if executed or
entered into on or after September 1, 1979, can be established only by:
(1) provisions of a written agreement that is binding and enforceable; or
(2) provisions of a will stating that a contract does exist and stating the material
provisions of the contract.
(b) The execution of a joint will or reciprocal wills does not by itself suffice as evidence of
the existence of a contract.
Tex. Prob. Code Ann. § 59A (Vernon Supp. 2008).
The dispute here concerns only the second alternative in section 59A(a)(2): whether there
is a provision in the will that states the material provisions of the contract. See id. §
59A(a)(2). Although the statute does not define "material provisions," in the context of
contracts, courts have said, for example, that specific performance of a contract is not
possible if it "leaves material provisions to be agreed to later." Condovest Corp. v. John
St. Builders, Inc., 662 S.W.2d 138, 140 (Tex. App.--Austin 1983, no writ). That is, the
contract "must be reasonably certain." Id. In the context of contractual wills, in determining
whether the provisions of the will state the material terms of the contract, courts have
examined the wills for a number of different factors, including: (1) a statement about the
consideration for making the agreement, (2) a statement that the agreement cannot be
changed or varied without the consent in writing of each person making the will, (3) a
reference to section 59A of the Probate Code, and (4) a specific description of what the
contract requires in the event of the death of the first person making the contractual wills.
See Estate of Hearn v. Hearn, 101 S.W.3d 657, 660-61 (Tex. App.--Houston [1st Dist.]
2003, pet. denied) (holding language met requirements of Probate Code because will
referred to section 59A and stated specifically what was required in event of first
person's death); (1) Coffman v. Woods, 696 S.W.2d 386, 387 (Tex. App.--Houston [14th
Dist.] 1985, writ ref'd n.r.e.) (holding language met requirements of Probate Code
because will had statement about consideration for making agreement and expressly
stated that agreement could not be changed or varied without consent in writing of each
person making will). (2) These factors are illustrative rather than specific, mandatory
In her third issue, Ray contends the trial court erred by granting summary judgment for
McMaster because the 1992 wills do not state the material provisions of the contract, as
required by the Probate Code. McMaster responds, without supporting authority, that
paragraphs 1 and 8 are the material provisions of the contract and therefore the statutory
requirements are met.
The wills at issue here state,
I hereby declare that I have an oral and/or written agreement with my spouse as to the
disposition which may be made of my property, any property taken under this Will or my
spouse's property upon the death of either of us. We have identical, or legally similar
Wills, intending thereby to be contractually bound.
The language in the wills fails to expressly recite the consideration exchanged for the
contract or state the wills could not be changed or revoked without mutual consent. See
Coffman, 696 S.W.2d at 387. The language in the wills fails to expressly state the wills
are contractual wills under section 59A of the Probate Code. See Hearn, 101 S.W.3d at
In considering what the contract requires in the event of the first person's death, we note
that the wills state that in the event of the first person's death, the surviving spouse is to
get "one hundred percent" of the deceased spouse's property. See id. Here, Velma died
leaving all her estate to Ernest without any limitations or conditions. Ernest, therefore,
took possession of Velma's entire estate for him to dispose of as he wished. McMaster,
however, contends Velma and Ernest agreed that upon both of their deaths, they would
leave all their property to him. The wills, however, do not say this. Velma's will states that
if Ernest predeceased her, then McMaster would take Velma's property. Specifically,
paragraph1(B) states, "If my spouse predeceases me . . . ." (Emphasis added). But
Ernest did not predecease Velma, so this condition for the transfer of the property never
occurred. The only condition that occurred under this will was that Velma died, leaving all
her property, without condition or limitation, to Ernest for him to dispose of without
McMaster contends "a will should be read as a whole to determine whether it was
executed by the parties to carry out a planned disposition of the joint estate of the
survivor." McMaster cites a number of cases to support this proposition. However, the
wills at issue in the cited cases contain express language making it clear a joint
disposition was intended. For example, in Murphy v. Slaton, the will provided,
It is our will and desire that the survivor of us . . . shall, with the rights and authority below
given, have all the estate of every description, real, personal or mixed, which either or
both of us may own at our death, to be used, enjoyed, occupied and conveyed by such
survivor for and during his or her life time, as the case may be, and that upon the death of
such survivor any of such estate then remaining shall be divided among the persons
following and in the following manner . . . .
273 S.W.2d 588, 590 (Tex. 1954) (emphasis added). The will in Novak v. Stevens had
similar language providing for the surviving spouse to have full use of the estate but
specifically providing for a devise of the remaining estate "upon the death of such
survivor." 596 S.W.2d 848, 851 (Tex. 1980); see also Dougherty v. Humphrey, 424
S.W.2d 617, 619 (Tex. 1968) (devising estate to surviving spouse and devising all
property remaining "upon the death of such survivor" to another beneficiary); Harrell v.
Hickman, 215 S.W.2d 876, 877 (Tex. 1948) (granting estate to surviving spouse and
providing devise of "the remainder of our property" "[a]fter the death of both of us"). The
language in these wills does not indicate an intent to dispose of both estates as one in
furtherance of a contractual agreement.
Although the wills show the spouses have an agreement to be contractually bound, that
reference is insufficient under section 59A(a)(2) because the will must state more than
the fact that a contract exists; it must state the material provisions of the contract. See
Tex. Prob. Code Ann. § 59A(a)(2). We hold the 1992 wills do not meet the requirements
of the Probate Code providing that a contractual will "can be established only by . . .
stating the material provisions of the contract," in addition to stating that a contract exists.
We sustain Ray's third issue. Having determined the wills are not contractual wills due to
their failure to comply with the Probate Code, it is necessary to reverse the summary
judgment that determined the wills were contractual wills. We need not, therefore,
address Ray's alternative arguments in his first and second issues that assert the wills
fail to meet the common law requirements for contractual wills. (3)
We reverse the judgment of the trial court determining that the 1992 wills of Ernest and
Velma Alley were contractual as a matter of law and render judgment that the 1992 wills
were not contractual as a matter of law.
Panel consists of Justices Alcala, Hanks and Wilson. (4)
1. In relevant part, the will in Estate of Hearn v. Hearn states,
In paragraph D-5 of the Trust Agreement, my husband [and in the case of Vernon's will,
"my wife"] and I have contracted that we each will execute and maintain in force a will
which directs our respective executors to make a marital deduction election under certain
circumstances. In accordance with such agreement, and to evidence and perfect the
same in accordance with Section 59A of the Texas Probate Code, I hereby direct that if I
am the "first deceased trustor" within the meaning of the Trust Agreement, my executor
shall elect in full Section 2056(b)(7) of the Internal Revenue Code to have all property
passing to the Marital Trust established under Section D of the Trust Agreement treated
as qualified terminable interest property for federal estate tax marital deduction purposes.
101 S.W.3d 657, 660 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (emphasis
2. In relevant part, the will in Coffman v. Woods states,
So that no contention may arise concerning the same, when we or either of us be dead,
we do hereby each mutually in consideration of the other making this will, and of the
provisions made herein in each other's behalf, make this our last will and testament and
agree that the same cannot be changed or varied by either without the consent in writing
of the other.
696 S.W.2d 386, 387 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (emphasis
3. We note that in McMaster's motion for rehearing and en banc reconsideration of our
June 18, 2009 opinion, McMaster contends that the common law no longer applies. We
do not reach that argument.
4. The Honorable Davie L. Wilson, retired Justice, First Court of Appeals, participating