in the Matter of the Estate of Sherman Alexander Hemsley
2014 Tex. App. LEXIS 12273
| Tex. App. | 2014Background
- Sherman A. Hemsley (decedent) executed a will on June 13, 2012 naming Flora Isela Enchinton Bernal (longtime business manager and cohabitant) as independent executrix and sole beneficiary; he died July 24, 2012.
- Bernal lived with and managed Hemsley’s affairs for ~20 years; Hemsley had indicated intent to leave his estate to Bernal before his cancer diagnosis.
- Richard and Robert Thornton (relatives on decedent’s paternal side) asserted kinship; DNA testing established Richard as Hemsley’s half-brother.
- After death, a dispute arose over control of Hemsley’s remains: medical examiner initially released the body to the Thorntons; Bernal filed to probate the will and to recover possession of remains.
- Probate bench trial: court admitted the will, found Hemsley had testamentary capacity and was not unduly influenced, appointed Bernal independent executor, and held Bernal entitled to control disposition of remains under Tex. Health & Safety Code §711.002.
- On appeal, Thorntons challenged (1) testamentary capacity (legal and factual sufficiency) and (2) right to control disposition of remains; court affirmed capacity findings and dismissed the disposition issue as moot because Hemsley had been interred and appellants failed to suspend judgment.
Issues
| Issue | Plaintiff's Argument (Thorntons) | Defendant's Argument (Bernal) | Held |
|---|---|---|---|
| Whether Hemsley had testamentary capacity when he executed the will | Signature not Hemsley’s or he lacked capacity due to illness/medication | Witness testimony (attorney, nurse, witnesses) established lucidity and deliberate testamentary intent | Court: Evidence legally and factually sufficient — Hemsley had testamentary capacity; will admitted |
| Whether undue influence affected will execution | Implied influence because sole beneficiary was non-relative/business manager | No evidence of coercion; attendees testified decedent voluntarily chose Bernal | Court: No undue influence found |
| Whether Bernal was entitled to dispose of remains under Tex. Health & Safety Code §711.002 | Thorntons: as half-brother (or nephew) they have statutory priority to control disposition | Bernal: probate court found she had right to control disposition; she acted on that right and arranged burial | Court: Issue is moot on appeal — remains were interred and appellants failed to preserve status quo by suspending judgment; disinterment/possession issues governed by §711.004 and not resolved here |
| Admissibility/limited use of DNA evidence | Thorntons relied on DNA to establish kinship and right to control remains | Probate court limited DNA evidence to inheritance issues under the Probate Code, not dispositive for disposition-of-remains question | Court upheld trial court’s evidentiary ruling and did not disturb probate findings; disposition claim moot |
Key Cases Cited
- Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) (proponent bears burden to prove will execution and testamentary capacity when contest filed)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal and factual sufficiency review on appeal)
- In re Neville, 67 S.W.3d 522 (Tex.App.—Texarkana 2002) (testamentary capacity must exist when will executed; contemporaneous proof critical)
- In re Estate of Arrington, 365 S.W.3d 463 (Tex.App.—Houston [1st Dist.] 2012) (testimony on testator’s mental condition at execution can suffice even without discussion of heirs/property)
- National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83 (Tex. 1999) (mootness doctrine bars advisory opinions)
- Leadingham v. Wallace, 691 So.2d 1162 (Fla. Dist. Ct. App. 1997) (interment during appeal can render dispute over burial moot)
- Tully v. Tully, 177 S.E.2d 49 (Ga. 1970) (interment prior to effective notice/relief renders related issues moot)