in the Matter of the Estate of Jose Lidio Romo
2016 WL 6520188
Tex. App.2016Background
- Jose Lidio Romo executed two wills: a 2001 will naming his brother Lorenzo as beneficiary/executor, and a 2006 will naming Louise Torres as sole beneficiary and Lorena Ibarra as substitute trustee/executor.
- The 2006 will was admitted to probate as a muniment of title on June 2, 2010; Lorenzo (through successor administrator Alma Castillo) filed a timely contest on April 12, 2011 alleging incapacity and undue influence.
- At a bench trial on the contest, Torres called a notary (Oralia Lopez) first; Lopez testified she notarized Romo’s signature but did not observe witnesses sign the attestation page and said witnesses were not present with Romo when he signed.
- Castillo moved for directed verdict asserting the 2006 will was invalid because the two required witnesses did not subscribe the attestation in the testator’s presence; the court granted the motion and later reaffirmed after brief additional testimony from one witness (Regina Giner).
- Torres did not call or proffer testimony from the remaining witnesses she had indicated would testify, nor did she make a formal offer of proof about their expected testimony; the probate court set aside the 2006 will as void.
Issues
| Issue | Plaintiff's Argument (Torres) | Defendant's Argument (Castillo) | Held |
|---|---|---|---|
| Whether the probate court could set aside the 2006 will on formal-execution grounds during a contest focused on capacity/undue influence | The contest was limited to capacity/undue influence and the will had already been probated; court erred to invalidate it on other grounds | A will must comply with statutory formalities to be valid; if it fails formalities it is of no force and may be set aside even in a contest raising other grounds | Court held the will failed statutory attestation requirements and could be invalidated despite the contest’s stated focus; Issue overruled |
| Whether the directed verdict was improper because Torres had additional witnesses present and ready to testify | Torres argued the court cut off her case after only one (of eight) witnesses and improperly excluded additional testimony | Castillo argued witnesses’ testimony was not offered or proffered; Torres failed to make offers of proof or request leave to present more testimony, so no preservation of error | Court held Torres failed to preserve error by not making an offer of proof or requesting to present additional testimony; Issue overruled |
Key Cases Cited
- In re Estate of Livingston, 999 S.W.2d 874 (Tex. App. El Paso 1999) (trial court must find a will valid to admit to probate)
- Guthrie v. Suiter, 934 S.W.2d 820 (Tex. App. Houston [1st Dist.] 1996) (self-proved will is prima facie evidence of proper execution but is contestable)
- Brown v. Traylor, 210 S.W.3d 648 (Tex. App. Houston [1st Dist.] 2006) (proponent must show will executed with statutory formalities and solemnities)
- In re Estate of Hutchins, 829 S.W.2d 295 (Tex. App. Corpus Christi 1992) (will not executed per statutory requirements is of no force or effect)
- Belgarde v. Carter, 146 S.W. 964 (Tex. Civ. App. San Antonio 1912) (same principle regarding statutory formalities for wills)