in the Estate of Louis S. Bernal
04-15-00499-CV
| Tex. App. | Nov 16, 2015Background
- Decedent Louis S. Bernal died leaving a will dated June 2, 2000 and an alleged codicil dated February 10, 2014. The codicil was not self-proved and the subscribing witnesses’ addresses were unknown.
- Philip Bernal filed an application to probate the will and requested issuance of letters testamentary; the trial court admitted the will but expressly refused to admit the codicil to probate.
- Robert Gomez (appellant) is named as a devisee under the codicil; he did not participate in the probate hearing and filed a restricted appeal/writ of error within the statutory period.
- Appellant asserts the codicil was admissible to probate by non-self-proving proof and that the trial court erred as a matter of law and fact in excluding it.
- Appellant also alleges the executor (Philip) breached fiduciary duties, committed fraud and failed to join or give adequate notice to all beneficiaries named in the codicil, depriving devisees of procedural due process.
Issues
| Issue | Plaintiff's Argument (Gomez) | Defendant's Argument (Philip/Executor) | Held (trial court) |
|---|---|---|---|
| Admissibility of codicil / sufficiency of proof | Codicil was provable (though not self-proved) by competent witnesses / other proof; exclusion was "no evidence" error | Trial court found codicil not admissible and refused to probate it | Will admitted; codicil not admitted to probate (trial court ruling) |
| Notice / material variance between pleadings and proof | Application and proof did not give notice of any defect; failure to plead or publish codicil issues prejudiced beneficiaries | Executor relied on pleadings and proof presented; published citation referenced codicil but amended pleading may not have been published | Trial court admitted only the will; appellant contends material variance and lack of notice rendered judgment void |
| Fiduciary duty, fraud, negligence by executor | Executor breached fiduciary duties, concealed material facts, and committed fraud against codicil beneficiaries | Executor acted within discretion in probate proceeding; no record evidence of concealment admitted at hearing | Trial court did not find in favor of appellant on these claims in the probate order (order admitted will only) |
| Failure to join necessary parties / due process | Other devisees under codicil were necessary parties; failure to join/notify them violated due process | Executor treated published citation and parties named in filings as adequate; trial court proceeded | Trial court adjudicated probate without admitting codicil; appellant urges reversal and remand for joinder/notice and full adjudication |
Key Cases Cited
- Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) (standard for restricted appeals and participation at trial)
- Best v. Ryan Auto Group, 786 S.W.2d 670 (Tex. 1990) (standards for reviewing legal and factual sufficiency/no-evidence challenge)
- Garcia v. Insurance Co. of Pa., 751 S.W.2d 857 (Tex. 1988) (no-evidence review and deference to evidence supporting findings)
- Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984) (executor/trustee fiduciary duties including disclosure)
- Enserch Exploration, Inc. v. Gardner, 836 S.W.2d 739 (Tex. App.—Eastland 1992) (material variance between pleadings and proof may void judgment)