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NO. 12-06-00409-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS
DISTRICT

TYLER,
TEXAS

IN
THE MATTER OF THE ESTATE
§
APPEAL FROM THE

OF
ROSEZELLAR WILLICH,
§
COUNTY COURT AT LAW

DECEASED  §
HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Robert Lewis Willich appeals an order admitting the will
of Rosezellar Willich to probate as a muniment of title.  On appeal, Willich presents seven
issues.  We modify the order
and affirm as modified.

Background

On May 21, 1998, Rosezellar Willich executed a self proved will
bequeathing her estate to her spouse, Ernest Justin Willich.  If her husband did not survive
her, Rosezellar bequeathed her estate to John M. Button, III, her
grandson.  If neither survived
her, Rosezellar bequeathed her estate to her heirs as determined by the
laws of the State of Texas relating to descent and distribution. There
were three subscribing witnesses to decedent’s will.  According to the record,
Rosezellar died on June 30, 2006 and Ernest predeceased her.  On September 20, 2006, Button
filed a first amended application for probate of Rozellar’s will as a
muniment of title.  In the
application, Button listed Rosezellar’s heirs as four surviving children
and himself.  He also listed
the three subscribing witnesses, stating that their addresses were
“unknown.”  Further, Button
asked that the court waive the requirements of section 89C(d) of the Texas
Probate Code requiring a sworn affidavit stating the terms of the will
that have been fulfilled and the terms that have not been fulfilled.  Willich filed a motion to contest
the application for probate, contending that the application did not
comply with the Texas Probate Code, that Rosezellar lacked testamentary
intent, and that the will was not self proved, removed her eldest son as
executor, and was the result of undue influence.  Because of the contest, the case
was transferred to the county court at law of Henderson County, Texas.

On November 16, 2006, the trial court held a hearing on the
application.  Button testified
that he was Rosezellar’s grandson, that she died in Kaufman although she
was a resident of Henderson County, and that her estate consisted of a
house valued at approximately $30,000.00.  Button identified Rosezellar’s
will and signature, and stated that she left everything to him.  He also stated that no state or
governmental agency or charitable organization was named as a beneficiary
in the will, that there were no debts owed by the estate, and that there
was no need for administration. Button also asked the trial court to waive
the requirements of section 89C(d) of the Texas Probate Code.  On cross examination, Button
stated that in 1998, Rosezellar was living in Whitney, Texas and that the
will was signed at an office in Seven Points, Texas.  He did not know the witnesses’
names.

Willich contended that without affidavits attached to the
application required by section 49 of the Texas Probate Code, the
application was not valid.  He
contended further that the application did not list all of Rosezellar’s
heirs, i.e., Charles Merchant, a predeceased son.  However, Willich stated that he
was not sure if Merchant’s children were entitled to inherit Merchant’s
twenty percent.  According to
Willich, Rosezellar declared that the will was four pages, but it
contained only three pages. Willich also asserted that Rosezellar was
unduly influenced to make her will.
He stated that the witnesses to the will must be present because
“there ain’t no affidavit towards the will.”  Further, Willich noted that the
application did not contain the witnesses’ addresses.  He also claimed that “someone” had
to drive his parents to the office in Seven Points, Texas.

At the conclusion of the hearing, the trial court admitted the will
to probate as a muniment of title.
On November 16, 2006, the trial court signed an order in accordance
with its ruling.  Willich
filed a motion objecting to the order, specifically noting that it
declared there was no objection to or contest of the will.  Willich appealed pro se. Button
did not file a brief.1

Undue Influence
and Lack of Testamentary Intent

In his first and fourth issues, Willich argues that the trial court
erred in admitting the will to probate because it was the result of undue
influence and Rosezellar lacked testamentary intent or capacity.  More specifically, he contends
that Rosezellar granted Button a power of attorney that gave Button an
opportunity to exert undue influence on Rosezellar to execute the
will.  He also argues that
Button’s undue influence caused Rosezellar to sign a will that contained
only three pages, not four pages as declared in the will itself.  Because of the undue influence and
the difference between the stated length of the will and the actual will,
Willich argues that the will is a forgery.  Further, he contends that
Rosezellar lacked testamentary intent or capacity because she suffered
from Alzheimer’s disease, was a borderline diabetic, and took medications
for high blood pressure and pain.

Applicable
Law

A will may be set aside for undue influence if a contestant proves
(1) the existence and exertion of an influence, (2) the effective
operation of such an influence that the mind of the testator was subverted
or overpowered at the time of the will’s execution, and (3) the execution
of a will that the testator would not have executed but for that
influence.  Cotten v.
Cotten, 169 S.W.3d 824, 827 (Tex. App.–Dallas 2005, pet.
denied).  The burden of
proving undue influence is upon the party contesting its execution.  Estate of Davis v.
Cook, 9 S.W.3d 288, 293 (Tex. App.–San Antonio 1999, no
pet.).  The exertion of undue
influence cannot be inferred from opportunity alone.  Cotten, 169 S.W.3d
at 827.  It is necessary for
the contestant to introduce some tangible and satisfactory proof of the
existence of each of the elements of undue influence.  Estate of Davis, 9
S.W.3d at 293.

A testator is presumed to know the contents of a testamentary
instrument she signed if she (1) is of sound mind, (2) is able to read and
write, (3) has the capacity to acquire knowledge of the contents of a
document by exercising her faculties, and (4) executes the instrument and
has it witnessed as required by statute.  Collins v. Smith, 53
S.W.3d 832, 837 (Tex. App.–Houston [1st Dist.] 2001, no pet.).  A testator has testamentary
capacity when she has sufficient mental ability to understand she is
making a will, the effect of making a will, and the general nature and
extent of her property.
Long v. Long, 196 S.W.3d 460, 464 (Tex. App.–Dallas
2006, no pet.).  She must also
know her next of kin and the natural objects of her bounty, and the claims
upon them, and have sufficient memory to collect in her mind the elements
of the business transacted and hold them long enough to form a reasonable
judgment about them.  Id.  The proponent of the will has the
burden of proving testamentary capacity.  Id.  However, a self proving affidavit
attached to a will allows the proponent of a will a manner of proof in
which to make out a prima facie case that the testator had testamentary
capacity or intent.  See Reynolds v.
Park, 485 S.W.2d 807, 816 (Tex. Civ. App.–Amarillo 1972, writ
ref’d n.r.e.).  Once the
proponent of the will produces a self proved will into evidence, the
contestant must go forward with evidence to rebut the presumption.  See id.

Analysis

At trial, Willich stated that the will was missing one page because
it contained only three pages even though Rosezellar declared that she was
signing a four page will.  He
also stated that Rosezellar’s previous will appointed Merchant as executor
and that, in 1998, “somebody got it changed.”  According to Willich, someone
caused his parents to change the will “over to [Button] and everything was
given to him because [Rosezellar was] easily influenced over the
years.”  He also alleged that
Rosezellar “was signing anything over to anybody.”  According to Willich, someone had
to drive his parents from their home in Whitney, Texas to Seven Points,
Texas where the will was executed.
Other than determining where the will was executed, he did not
question Button regarding his claims of undue influence.  Nor did  he introduce any evidence or
produce any witnesses regarding the existence or operation of undue
influence upon Rosezellar’s mind or that she would not have executed the
will but for that influence.
Because Willich failed to introduce any tangible and satisfactory
proof of the existence of each of the elements of undue influence, he
failed to prove that Rosezellar was
unduly influenced to execute the will.  See  Estate of Davis, 9
S.W.3d at 293.

Regarding Rosezellar’s lack of testamentary intent or capacity, the
burden of proof is on Button.
In her will, Rosezellar stated that she was “of sound mind and in
the contemplation of the certainty of death.”  Button filed Rosezellar’s self
proved will with the trial court.
At that point, the burden shifted to Willich to produce evidence to
rebut the presumption that Rosezellar had testamentary capacity or
intent.  See
Reynolds, 485 S.W.2d at 816.  At trial, Button did not testify
regarding Rosezellar’s testamentary intent or capacity, nor was he
questioned by his attorney or Willich regarding Rosezellar’s state of mind
or capacity.  Willich stated
that Rosezellar “was signing anything over to anybody” and that she had
been “easily influenced over the years.”  He did not argue that Rosezellar
had Alzheimer’s disease or that she was on several medications.  Willich also did not produce any
evidence that Rosezellar lacked testamentary intent or capacity.  Because Willich failed to
introduce any evidence on the issue, he did not rebut the presumption that
Rosezellar had testamentary intent or capacity to execute the will.
See id.  Therefore, we overrule Willich’s
first and fourth issues.

Section 89 of
the Texas Probate Code

In his second issue, Willich contends that the trial court lacked
jurisdiction to waive section 89C(d) of the Texas Probate Code.  In his application for probate and
at trial, Button requested the trial court waive the requirements of
section 89C(d) of the Texas Probate Code.  Section 89C(d) states that unless
waived by the court, after the date a will is admitted to probate as a
muniment of title, the applicant for probate of the will shall file with
the clerk of the court a sworn affidavit stating specifically the terms of
the will that have been fulfilled and the terms of the will that have not
been fulfilled.  Tex. Probate Code Ann. §
89C(d) (Vernon 2003).
However, an appellate brief must contain a clear and concise
argument for the contentions made with appropriate citations to
authorities.  Tex. R. App. P. 38.1(h).  Willich does not provide any
argument or citations to the record to demonstrate why the trial court
lacked jurisdiction to waive the requirements of section 89C(d).  Willich’s argument consisted only
of a conclusory statement that the trial court lacked jurisdiction to
waive section 89C(d).  Because
Willich has failed to provide an adequate substantive analysis of this
issue, he has presented nothing for our review.  See Tex. R. App. P. 38.1(h).
Therefore, we overrule Willich’s second issue.

Jurisdiction

In his third issue, Willich contends that the trial court lacked
jurisdiction over Rosezellar’s will because there was a will contest.  A county court has the general
jurisdiction of a probate court. Tex. Probate Code Ann. § 4
(Vernon 2003).  However, in
contested probate matters, the judge of the constitutional county court
shall, on the motion of a party to the proceeding, transfer the proceeding
to the county court at law or a statutory court exercising the
jurisdiction of a probate court other than a statutory probate court.  Tex. Probate Code Ann. § 5(c)
(Vernon 2003).  After Willich
filed a motion to contest the application for probate, Button moved the
county court to transfer the case to the county court at law.  The county court granted Button’s
motion.  According to section
5(c), the county court had no choice but to transfer the case to the
county court at law.

Appellant cites In re Estate of Kurtz, 54 S.W.3d 353
(Tex. App.–Waco 2001, no pet.), for the proposition that the county court
at law was without jurisdiction to hear the will contest.  In that case, the county court
admitted the contested will to probate as a muniment of title.  Id. at 354.  After doing so, the contestant
filed several motions and the county court transferred the case to the
county court at law “for hearing purposes only.”  Id.  The court of appeals held that
when the order admitting the will to probate as a muniment of title became
final, the county court’s jurisdiction terminated. Id. at
356.  Thus, it had no
jurisdiction to entertain the contestant’s postjudgment motions, and the
county court at law was also without jurisdiction to hear the case.
Id.  In this case, the county court
transferred the case to the county court at law before admitting the will
to probate as a muniment of title and in accordance with section 5(c) of
the Texas Probate Code.
Accordingly, the trial court had jurisdiction of the
proceeding.  Therefore, we
overrule Willich’s third issue.

Application for
Probate

In his fifth issue, Willich argues that the trial court erred by
considering Button’s application to probate Rosezellar’s will because it
failed to conform to the Texas Probate Code.  More specifically, he contends
that the application failed to give the correct time and place of
Rosezellar’s death, failed to list the subscribing witnesses’ addresses,
failed to give a description of Rosezellar’s property, failed to prove
that Rosezellar was of sound mind, and failed to contain the affidavit
required by section 49 of the Texas Probate Code.

Applicable
Law

An application for probate of a will as a muniment of title shall
state (1) the name and domicile of each applicant, (2) the name, age if
known, and domicile of the decedent, and the fact, time, and place of
death, (3) facts showing that the court has venue, (4) that the decedent
owned real or personal property, or both, describing the property
generally, and stating its probable value, (5) the date of the will, the
name and address of the executor named in the will, if any, and the names
and residences of the subscribing witnesses, if any, (6) whether a child
or children born or adopted after the making of such will survived the
decedent, and the name of each such survivor, if any, (7) that there are
no unpaid debts owing by the estate of the testator, excluding debts
secured by liens on real estate, (8) whether the decedent was ever
divorced, and if so, when and from whom, and (9) whether the state, a
governmental agency of the state, or a charitable organization is named by
the will as a devisee.  Tex. Probate Code Ann. § 89A(a)
(Vernon Supp. 2007).  These
matters shall be stated and averred in the application to the extent that
they are known to the applicant, or can with reasonable diligence be
ascertained by the applicant.
Id.  If
any of such matters is not stated or averred in the application, the
application shall set forth the reason why such matter is not so stated
and averred.
Id.

Analysis

Willich contends that the application for probate failed to conform
to section 89A of the Texas Probate Code because it contained the
incorrect date and place of Rosezellar’s death.  In the application, Button stated
that Rosezellar died on June 30, 2006 in Kaufman, Kaufman County,
Texas.  However, Willich
stated in his motions contesting the will that Rosezellar died on June 29,
2006 in Kaufman, Kaufman County, Texas.  No death certificate was filed as
an exhibit to any of the applications or motions in the clerk’s record,
nor was a death certificate entered as an exhibit at trial.  Because there is no death
certificate in the record, we cannot determine whether the application for
probate failed to state the correct date of Rosezellar’s death.  As such, we must presume that the
application was correct.

Willich next argues that the application did not list the
subscribing witnesses’ addresses.
In the application, Button listed the three subscribing witnesses
to Rosezellar’s will and stated that all three of their addresses were
“unknown.”  Although the
probate code states that the subscribing witnesses’ residences shall be
listed in the application, it also states that these matters should be
stated and averred to the extent they are known to the applicant.  See Tex. Probate Code Ann.
§ 89A.  Because we
presume Button stated the witnesses’ residences to the extent known to
him, we cannot conclude that the trial court erred by considering the
application even though it did not contain the subscribing witnesses’
residences.

However, Willich contends that because the witnesses’ addresses are
unknown, there is no way to determine if they actually witnessed
Rosezellar’s will.  If a will
is self proved as provided in the Texas Probate Code, no further proof of
its execution with the formalities and solemnities and under the
circumstances required to make it a valid will shall be necessary.  See Tex. Probate Code Ann. § 84
(Vernon 2003).  Because
Rosezellar’s will is self proved, Button was not required to prove that
the named individuals witnessed her will.

Further, Willich argues that the application did not give a
description of Rosezellar’s property.  The application stated that
Rosezellar’s estate consisted of real and personal property. Although the
probate code requires the property to be described generally, it also
provides that these matters should be stated and averred to the extent
they are known to the applicant.  See Tex. Probate Code Ann. §
89A.  Because we presume
Button stated Rosezellar’s real and personal property to the extent known
to him, we cannot conclude that the trial court erred by considering the
application even though it did not contain a more detailed description of
Rosezellar’s real and personal property.

Appellant also contends that the application did not prove that
Rosezellar was of sound mind. However, proof that Rosezellar was of sound
mind need not be included in the application.  See Tex. Probate Code Ann. §
89A.  Finally, Willich argues
that the application failed to contain the  affidavit required by section 49
of the Texas Probate Code.
Section 49 defines who may institute proceedings to declare
heirship.  See Tex. Probate Code Ann. § 49
(Vernon 2003).  A proceeding
to declare heirship may be instituted only when a person dies intestate or
when a will has been probated and any real or personal property has been
omitted from the will.  See
Tex. Probate Code Ann.
§ 48 (Vernon Supp. 2007).
Rosezellar did not die intestate, nor does Willich argue that the
will omitted any real or personal property. As such, section 49 does not
apply.

We overrule Willich’s fifth issue.

Removal of
Heirs

In his sixth issue, Willich argues that Rosezellar’s heirs,
particularly her predeceased child’s heirs and her adopted children, must
have been expressly removed from her will.  Because Rosezellar did not do so,
he contends, the heirs at law should inherit her estate.

Applicable
Law

A person of sound mind has a legal right to dispose of her property
as she wishes.
Cotten, 169 S.W.3d at 828.  In order to disinherit an heir, a
testator must effectively dispose of her property to another under the
provisions of her will.
In re Estate of Self, 591 S.W.2d 338, 340 (Tex. Civ.
App.–Tyler 1979, no writ).
The Texas Supreme Court has stated that

[t]he right of the heir is defeated only by a
substitution of some person to take in his place.  And not by a declaration, or
express intention, that he shall not take.  Hence, though the heir is
expressly disinherited, as if a man by his will should declare that his
heirs or next of kin shall have no part of his estate, and not direct who
shall have it, still the heir would take, not under the will, but under
the law; for there must be in the will a devisee, to supplant the
heir.

Id. (quoting
Philleo v. Holliday, 24 Tex. 38 (1859)).  If a testator fails to make an
effective disposition of her property to another, the property will pass
to her heirs at law under the laws of descent and distribution.  Id. (citing
Najvar v. Vasek, 564 S.W.2d 202, 207 (Tex. Civ. App.–Corpus
Christi 1978, no writ)).

Analysis

In her will, Rosezellar bequeathed her estate to her husband.  However, if he predeceased her,
she bequeathed her estate to Button.
If both her husband and Button predeceased her, Rosezellar left her
estate to her heirs as determined by the laws of the State of Texas
relating to descent and distribution.  Rosezellar had the legal right to
dispose of her property as she wished.  See Cotten, 169 S.W.3d
at 828.  Because Rosezellar’s
husband predeceased her, all of her estate passed to Button under the
terms of her will.  The rights
of Rosezellar’s heirs at law, including Willich, were defeated because
Button survived Rosezellar and he, as the devisee of her entire estate
under the will, supplanted them.
See In re Estate of Self, 591 S.W.2d at 340.  Accordingly, Rosezellar’s heirs at
law were not entitled to any portion of her estate under the laws of
descent and distribution. Therefore, we overrule Willich’s sixth
issue.

Order Admitting
Will to Probate

In his seventh issue, Willich contends that the trial court abused
its discretion by signing the order admitting the will to probate because
it contained error.  More
specifically, he argues that the
order stated there was no objection to or contest of the will.  The order admitting the will to
probate as a muniment of title included a finding that “no objection to or
contest of the probate of said Will has been filed herein.”  We note that the clerk’s record
shows Willich filed one motion and several supplemental motions to contest
the application for probate.
Accordingly, we sustain Appellant’s seventh issue.

Conclusion

Because we have sustained Willich’s seventh issue, we
modify the trial court’s order admitting Rosezellar’s will
to probate by deleting the words “no objection to or contest” and
substituting in their place the words “a contest.”  See Tex. R. App. P. 43.2(b);
Mullins v. Mullins, 202 S.W.3d 869, 878 (Tex. App.–Dallas
2006, pet. denied) (stating that an appellate court has the authority to
modify an incorrect judgment when the necessary information is
available).  We affirm
the trial court’s order as modified.

BRIAN HOYLE

Justice

Opinion delivered December
21, 2007.

Panel consisted of Worthen, C.J., Griffith, J.,
and Hoyle, J.

(PUBLISH)

1 We have
liberally construed Willich’s brief in order to give effect to his
arguments.  See Tex. R. App. P. 38.9.  As such, we have determined that
he has raised seven
issues.