in the Matter of the Estate of Elwin Ross Standefer
530 S.W.3d 160
| Tex. App. | 2015Background
- Decedent Elwin Ross Standefer died intestate as to possession of his original will; a signed photocopy prepared by his bookkeeper Kathy Witt was offered for probate by son Randy.
- Randy sought probate of the photocopy as a lost will; sister/appellant Nedinah challenged admission, arguing insufficient proof under Texas Estates Code §§ 256.152, 256.153, 256.156.
- Evidence: Kathy drafted and testified she witnessed Elwin sign; several witnesses testified the will was kept in a lockbox to which multiple people (including girlfriend’s daughter Tammie) had access and from which an automobile title was previously taken.
- Appellant argued: presumption of revocation applies because original was last in decedent’s possession; signature discrepancies (typed name vs. signed name) and possible use of a signature stamp undermined the self-proving affidavit and execution formalities.
- Trial court admitted the copy to probate; on appeal the court reviewed legal and factual sufficiency of evidence supporting findings that the will was not revoked, was properly executed (self-proved), the original could not be produced after reasonable diligence, and the contents were proved by a credible witness.
Issues
| Issue | Plaintiff's Argument (Randy) | Defendant's Argument (Nedinah) | Held |
|---|---|---|---|
| Whether presumption of revocation (original last in testator’s possession) was rebutted | Evidence that lockbox had been accessed and items stolen; witnesses saw envelope; decedent expressed intent favoring beneficiaries; therefore original may have been fraudulently destroyed | Presumption applies because original was last seen in decedent’s possession and cannot be produced | Rebutted: sufficient evidence of possible fraudulent destruction and circumstances contrary to revocation presumption; challenge overruled |
| Whether will was executed with required formalities and solemnities | Will bore a valid signature and was self-proved (prima facie valid); witness testimony (Kathy) that she watched Elwin sign | Signature discrepancies and possible use of a signature stamp render self-proving affidavit unreliable and execution invalid | Sufficient evidence that Elwin signed and executed will; self-proving affidavit valid; challenge overruled |
| Whether original could be produced with reasonable diligence (§256.156(b)(1)) | Randy diligently searched lockbox and other places; evidence supports fraudulent destruction explaining nonproduction | Argues insufficient proof of cause of nonproduction | Sufficient evidence that original could not be produced despite reasonable diligence; challenge overruled |
| Whether contents of will were substantially proved (§256.156(b)(2)) | Drafter/witness Kathy testified she prepared, read and witnessed the will and that the copy is accurate | Kathy lacks credibility; unauthorized practice of law; not a proper witness | Court credited Kathy’s testimony as credible and sufficient to prove material contents; challenge overruled |
| Whether self-proving affidavit and §256.153 witness requirement apply | Will is self-proved, so no additional subscribing-witness testimony required | Argues subscribing witnesses did not testify as §256.153 requires | Court held self-proved will obviated §256.153 requirements; challenge overruled |
Key Cases Cited
- Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994) (standard for reviewing factual and legal sufficiency of findings)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (deference to factfinder on credibility; factual-sufficiency review limits)
- In re Estate of Glover, 744 S.W.2d 939 (Tex. 1988) (proponent must overcome presumption of revocation by preponderance)
- Hibbler v. Knight, 735 S.W.2d 924 (Tex. App.—Houston [1st Dist.] 1987) (presumption arises when will last seen in decedent’s possession and cannot be found)
- In re Estate of Capps, 154 S.W.3d 242 (Tex. App.—Texarkana 2005) (lost-will statutes satisfied where evidence showed cause of nonproduction and will not revoked)
- Bracewell v. Bracewell, 20 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2000) (self-proved affidavit on a copy can make additional subscribing-witness proof unnecessary)
- In re Estate of Romancik, 281 S.W.3d 592 (Tex. App.—El Paso 2008) (testimony that testator signed and intended document as will is probative of execution)