In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00570-CV
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IN THE ESTATE OF ADRIAN NEUMAN
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On Appeal from the County Court
Jefferson County, Texas
Trial Cause No. 105449
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MEMORANDUM OPINION
In this appeal from a proceeding in a probate matter, the appellant complains
that the trial court improperly denied his motion to transfer venue, and he argues
that the charge failed to properly submit the question of whether the decedent had
testamentary capacity when executing his will. We hold that the trial court properly
overruled the appellant’s motion to transfer venue and properly denied the
appellant’s objections to the charge. We affirm the trial court’s order denying the
appellant’s motion to contest the decedent’s will.
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Background
Adrian Neuman died in 2012. In his will, dated April 11, 2011, Neuman left
his entire estate to his daughters to the exclusion of his sons. Subsequently, Nancy
Hart, the independent executrix of Neuman’s estate and one of his daughters, filed
Neuman’s will for probate. In July 2012, the County Court ordered that Neuman’s
2011 will be admitted for probate.
In November 2012, Kenneth Neuman filed a motion to contest his father’s
2011 will. In his motion, Kenneth claimed that his father was not of sound mind
when he executed the will. Initially, the trial court dismissed Kenneth’s attempt to
contest the will on the basis that his motion to contest the will was not timely, and
it then dismissed the case “due lack of evidence.” Kenneth appealed from those
rulings, and in 2013, we reversed and remanded the case for trial. In the Estate of
Neuman, No. 09-13-00076-CV, 2013 Tex. App. LEXIS 8490 (Tex. App.—
Beaumont July 11, 2013, no pet.).
In September 2013, approximately two months before the trial of the case,
Kenneth filed a motion to transfer the proceedings to Orange County. In his
motion, Kenneth asserted that Jefferson County was not a county of proper venue,
and he asked the court to transfer the case to Orange County because Neuman, at
the time of his death, was living in a nursing home in Orange County. Following a
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hearing on Neuman’s motion, the trial court found that at the time of Neuman’s
death, Neuman was a resident of Jefferson County. Accordingly, the trial court
denied Kenneth’s motion to transfer venue.
Subsequently, following a jury trial, the trial court asked the jury to decide
the following issue: “Did Adrian J. Neuman have testamentary capacity to sign the
Last Will and Testament dated April 11, 2011?” The instructions following this
question instructed the jury on the various factors that could be considered in
deciding if Neuman had testamentary capacity when his signed his will. The
instructions indicated the question of testamentary capacity concerned the
decedent’s testamentary capacity “at the time the decedent signs a will.” The jury
found that Neuman had testamentary capacity when he signed his 2011 will, and
based on the jury’s verdict, the trial court denied Kenneth’s motion to contest
Neuman’s will.
Venue
In issue one, Kenneth complains the proceedings should have been
transferred to Orange County. According to Kenneth, because Neuman was in a
nursing home located in Orange County when he died, Neuman’s domicile or fixed
place of residence—which is used to determine the proper venue for a probate
proceeding—was in Orange County. See Tex. Estates Code Ann. § 33.001 (West
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2014). 1 In response, Nancy argues that Kenneth’s motion to transfer was not timely
because he did not file his motion to transfer venue at the onset of the contest.
Additionally, Nancy contends that Neuman’s domicile or fixed place of residence
remained in Jefferson County after he moved to the nursing home, as Neuman was
living in Jefferson County before his health declined to the point that he required
the level of care provided at the nursing home.
We agree with Nancy that Kenneth’s motion to transfer venue was untimely.
Rule 86(1) of the Texas Rules of Civil Procedure states that “[a]n objection to
improper venue is waived if not made by written motion filed prior to or
concurrently with any other plea, pleading or motion except a special appearance
motion provided for in Rule 120a.” Tex. R. Civ. P. 86(1). The record shows that
Kenneth did not file his motion to transfer venue concurrently or before he filed his
first plea, pleading or motion. Because Kenneth’s motion to transfer venue was
untimely, he waived his claim that Neuman’s domicile changed from Jefferson
County to Orange County shortly before he died. See id.; Jarvis v. Feild, 327
S.W.3d 918, 925 (Tex. App.—Corpus Christi-Edinburg 2010, no pet.) (holding
1
As of January 1, 2014, the former Texas Probate Code has been repealed
and replaced with the Texas Estates Code. See In the Estate of Hamner, No. 09-13-
00218-CV, 2015 Tex. App. LEXIS 1105, **7-8 n.2 (Tex. App.—Beaumont Feb. 5,
2015, no pet.); Leavitt v. Holbrook, No. 09-12-00303-CV, 2014 Tex. App. LEXIS
7476, **9-10 n.4 (Tex. App.—Beaumont July 10, 2014, no pet.). All citations
herein will be to the Texas Estates Code.
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that pro se litigant in probate proceeding waived her venue claim by failing to
comply with the requirements of Rule 86(1)); McGrede v. Coursey, 131 S.W.3d
189, 196 (Tex. App.—San Antonio 2004, no pet.) (concluding that appellant’s
venue complaint was waived in a guardianship proceeding governed by the Texas
Probate Code because the appellant failed to comply with the requirements of Rule
86(1)). We overrule Kenneth’s first issue.
Jury Charge
In issue two, Kenneth complains the trial court erred by submitting a charge
that asked about Neuman’s testamentary capacity at the time he executed his will.
The instructions at issue, submitted immediately following the question the jury
was asked to answer, explained:
A decedent has testamentary capacity if, at the time the
decedent signs a will, the decedent has:
1. sufficient mental ability to understand that he is making a
will;
2. sufficient mental ability to understand the effect of his act in
making the will;
3. sufficient mental ability to understand the general nature and
extent of his property;
4. sufficient mental ability to know his next of kin and natural
objects of his bounty and their claims on him; and
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5. sufficient memory to collect in his mind the elements of the
business to be transacted and to be able to hold the elements
long enough to perceive their obvious relation to each other
and to form a reasonable judgment as to these elements.
Before the trial court submitted the case to the jury, Kenneth objected to the
charge. At trial, and on appeal, Kenneth argues that the charge improperly focuses
on whether Neuman possessed testamentary capacity on April 11, 2011, the date
he signed the will; instead, Neuman argues that the charge should have inquired
whether Neuman had testamentary capacity prior and subsequent to the periods
surrounding the execution of the will. The trial court overruled Kenneth’s
objection to the charge.
With respect to when a testator must possess testamentary capacity to
execute a valid will, the Texas Supreme Court has explained that the issue
concerns the condition of the testator’s mind on the date the will was executed. Lee
v. Lee, 424 S.W.2d 609, 611 (Tex. 1968) (emphasis added). In this case, the trial
court’s instruction regarding Neuman’s testamentary capacity follows Texas law,
as the charge is consistent with Texas cases that have explained that testamentary
capacity means the testator has sufficient mental ability to:
(1) understand the business in which he is engaged; (2) understand
the effect of making his will; (3) understand the general nature and
extent of his property; (4) know his next of kin and the natural
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objects of his bounty and the claims upon him; and (5) collect in
his mind the elements of the business to be transacted and hold
them long enough to perceive their obvious relation to each other
and to form a reasonable judgment about them.
In the Estate of Lynch, 350 S.W.3d 130, 136 (Tex. App.—San Antonio 2011, pet.
denied); and see Tieken v. Midwestern State Univ., 912 S.W.2d 878, 882 (Tex.
App.—Fort Worth 1995, no pet.).
In this case, the charge properly tasked the jury with deciding whether
Neuman possessed testamentary capacity at the time he executed his 2011 will.
The charge used in Neuman’s case is consistent with the charge the Committee on
Pattern Jury Charges suggests is appropriate in a will contest case. See Comm. on
Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Will Contests
PJC 230.2 (2014). While the “Texas Pattern Jury Charges are not ‘law,’ they are
heavily relied upon by bench and bar and based on what the State Bar Committee
perceives the present law to be.” THI of Tex. at Lubbock I, LLC v. Perea, 329
S.W.3d 548, 569 (Tex. App.—Amarillo 2010, pet. denied) (citing H.E. Butt
Grocery Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.—San Antonio 1996),
aff’d, 985 S.W.2d 22 (Tex. 1998)).
We hold the trial court properly overruled the objection that Neuman made
to the charge, and we overrule the arguments that he makes in issue two. Because
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Kenneth’s issues are without merit, the trial court’s order denying Kenneth’s
motion to contest his father’s will is affirmed.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on November 10, 2014
Opinion Delivered May 14, 2015
Before Kreger, Horton, and Johnson, JJ.
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