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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00063-CV
______________________________
IN THE INTEREST OF D.W., A CHILD
On Appeal from the County Court at Law
Lamar County, Texas
Trial Court No. 78773
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
The Unknown Father,[1] the sole appellant in this case, has filed a motion seeking to dismiss his appeal, stating that the trial court has granted a new trial in this matter. Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, his motion is granted. Tex. R. App. P. 42.1.
We dismiss the appeal.
Bailey C. Moseley
Justice
Date Submitted: August 2, 2011
Date Decided: August 3, 2011
[1]The Unknown Father has been identified. However, to protect the child’s identity, we continue to refer to him as “the Unknown Father,” which is the way he was referred to in his notice of appeal.
ible on the issue of "exertion of influence," such statements were of no probative value on that issue.
However, the Pearce case was decided before the adoption of the Texas Rules of Evidence. Before the adoption of the Texas Rules of Evidence, inadmissible hearsay had no probative value. Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex. 1969). Rule 802 of the Texas Rules of Evidence now provides that inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay. Aatco Transmission Co. v. Hollins, 682 S.W.2d 682 (Tex. App.—Houston [1st Dist.] 1984, no writ). Here, the statements were admitted without objection and no issue of admissibility is presented in this appeal; therefore, the evidence cannot be said to have no probative value even if the statements were hearsay. See Tex. R. Evid. 802. Consequently, these declarations from Gene to Hatton will be considered on both components of undue influence: the external factor (pressure by another party) and the internal factor (collapse of the testator's mind or will).
The statements by Hatton quoting Gene that he executed the will to pacify Shirley and to get her off the warpath do constitute some evidence of an exertion of influence. Consequently, we will examine the entire record to determine whether the jury finding on undue influence was clearly wrong and unjust.
In looking at the factors used to examine whether an undue influence has been exerted, we examine several factors. The following factors are concerned with proving the existence and exertion of an influence over the testator. Rothermel, 369 S.W.2d at 922.
1. The nature of the relationship between Gene and Shirley and the other beneficiaries—Friends of Gene and Shirley and their pastor testified Gene and Shirley had a close, loving relationship, whereas Hatton perceived it as a love-hate relationship. Van Steed acknowledged that Gene loved Shirley. Gene wrote a letter to Shirley in September 2001 expressing his love and affection for her. Shirley moved to Daingerfield in 1993 after she had a heart attack in order to be near a medical center—Perryton is 120 miles from Amarillo, the nearest city with a major heart hospital. While it is true they did not live together on a daily basis, they kept in constant contact by telephone and were together on many weekends. There is evidence that Gene was for some time estranged from his sons due to a disagreement about a financial transaction. This factor shows no exertion of influence.
2. The opportunity for exertion of undue influence—Since these parties did not live together daily, there was not nearly as much potential for undue influence. Shirley was 500 miles away from Gene most of the time. This factor weighs against a showing of the existence of exertion of influence by Shirley over Gene.
3. Circumstances surrounding the drafting of the will—The holographic will indicates that Gene drafted it "alone." There is no evidence that Shirley was with Gene when he drafted the will or that she participated in the preparation of the will. There is no evidence Shirley asked, pleaded with, cajoled, or persuaded Gene to execute the will. According to Shirley, she never asked him about a will, and at the time he prepared the holographic will, he was in Perryton and she was in Daingerfield. She received the will in the mail, and Gene told her to put it in the safe-deposit box. The evidence concerning this very important factor provides no inkling that Shirley exerted influence in the preparation of the will.
4. Existence of fraudulent motive—Fraud generally refers to some material misrepresentation. Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). There is no evidence in the record Shirley misrepresented, deceived, or tricked Gene in any way. To the contrary, they owned several mobile home parks, one of which Shirley managed, and they conferred on a regular basis about the businesses. No evidence is presented of a fraudulent motive.
5. Whether there has been a habitual subjection of the testator to the control of another—Gene was a lawyer and businessman who had acquired a sizeable estate. He continued to be an active practicing lawyer until his death. He was not financially dependent on Shirley. There was no evidence presented of any other occasions when Shirley controlled Gene's actions. Gene was described as an independent, opinionated, take-charge type of person. Gene's financial life involved some significant transactions. The fact Shirley enjoyed spending money is not evidence she controlled Gene's decisions and actions.
Other cases provide some guidance. In Griffin v. Griffin, 271 S.W.2d 714 (Tex. Civ. App.—Texarkana 1954, no writ), the testimony was that the testator's wife dominated him, including handling all financial matters, being the "boss," and running the whole show. This Court held that such general and even controlling influence was not sufficient to invalidate the will unless that influence was specifically exerted on the testamentary act. Id. at 718. This Court found, even in the face of a jury verdict of undue influence, and considering the evidence in the light most favorable to upholding the verdict, there was no evidence of probative value to support a finding of undue influence by the wife. Likewise, in Bradshaw v. Naumann, 528 S.W.2d 869 (Tex. Civ. App.—Austin 1975, writ dism'd), in construing a deed which a jury found was executed as a result of undue influence, witnesses quoted the one who executed the deed "as saying that his wife was running him crazy, that if they had an argument he would give in to her, and that if he had not signed the deed there would have been hell, '. . . so much hell around there that he'd have to leave home.'" Id. at 871. The court held such evidence did not constitute direct evidence of external pressure to execute the deed.
Other than Gene's statements to Hatton, there is no direct evidence of undue pressure by Shirley toward Gene to make and execute the holographic will. Circumstantial evidence may also be considered. However, the only circumstantial evidence offered concerned financial matters and alleged marital infidelity. While this evidence shows discord and disagreements between the spouses, it must be considered together with all other evidence to determine whether the evidence is sufficient for a jury to conclude Shirley exerted pressure on Gene to execute the holographic will. Indeed, a reasonable conclusion is that such discord would lead to the execution of a will excluding the offending spouse. The circumstances relied on as establishing the elements of undue influence must be of a reasonably satisfactory and convincing character, and they must not be equally consistent with the absence of the exercise of such influence. In re Estate of Graham, 69 S.W.3d 598, 609 (Tex. App.—Corpus Christi 2001, no pet.). This is so because a solemn testament should not be set aside on a bare suspicion of wrongdoing. Id. (citing Rothermel, 369 S.W.2d at 922). The evidence discussed above is, under Rothermel, contrary to and greatly outweighs Hatton's testimony about Gene's declarations to him. For the reasons explained in analyzing those factors, when all the evidence is considered, we conclude that the jury finding on the first element of undue influence—the existence and exertion of an influence—is against the great weight and preponderance of the evidence, and is clearly wrong and unjust.
b. Subvert or Overpower Gene's Mind
There must also be evidence to support the second element—that the influence operated to subvert or overpower the person's mind executing the document. Not every influence exerted over a person is undue. "[O]ne may request or even importune and entreat another to execute a favorable dispositive instrument, but unless the importunities and entreaties are shown to be so excessive as to subvert the will of the marker [sic] they will not taint the validity of the instrument with undue influence." Curry v. Curry, 153 Tex. 421, 428, 270 S.W.2d 208, 212 (1954); Estate of Davis, 920 S.W.2d 463, 466 (Tex. App.—Amarillo 1996, writ denied); Mason v. Mason, 369 S.W.2d 829, 838 (Tex. Civ. App.—Austin 1963, writ ref'd n.r.e.).
The evidence on which the Steed sons rely for this element consists primarily of the same relied on for the first element—Gene was trying to find peace of mind, get Shirley off the warpath, and curb her spending. Additionally, the Steed sons argue that the testimony of Van Steed corroborates Hatton's testimony. Van testified that it was "true" someone could exert influence over another even though the distance between them was hundreds of miles, that it was "correct" that pressure could be exerted by spending thousands of dollars and demanding the other provide the money, and it was "true" that allegations of sexual improprieties, all together, could overpower a person's mind. Finally, he was asked, "Do you think that that happened," to which he answered, "Yes, I do."
Again, we find there is some evidence of this element and we examine the factual sufficiency of the evidence.
The element of subverting or overpowering the testator's mind focuses on the mental or physical incapacity to resist. Rothermel, 369 S.W.2d at 923. These factors are found as follows:
1. The state of the testator's mind—Some evidence was presented that Gene had been prescribed Prozac and suffered from depression and anxiety. However, he apparently worked daily in his office as a practicing lawyer and businessman. The difficulties he was encountering never prevented him from conducting his business affairs. By all accounts, Gene was a competent lawyer and businessman. Witnesses described Gene as "powerful"; competent"; "one of those movers and shakers that made things happen"; "[h]ad an active, sharp mind"; "as sharp and as bright an individual as I had known"; "good businessman"; "knew what he was doing"; "strong willed"; "very opinionated"; "if Gene had his mind made up to do something, . . . you were talking to a wall; it was just going to be that way." His sons described him as a "take-charge kind of guy"; "headstrong, very independent"; and "stubborn." This factor militates against a finding that Gene's mind was overcome or subverted when he executed the will.
2. Mental or physical incapacity to resist or the susceptibility of the testator's mind to influence—There is no evidence Gene was feeble, incapacitated, or financially or emotionally dependent on Shirley. The evidence was all to the contrary: that Gene was an independent, opinionated, headstrong person who made his own decisions.
3. The words and acts of Gene—Gene stated he had a will and Shirley was the executor. Gene also told Hatton that he executed the will to pacify Shirley. As late as April 2001, Gene stated in a formal financial statement filed with his bank, "I have made a will; the executor is Shirley A. Steed, my wife." Gene acknowledged he understood that a misrepresentation on the statement was a criminal offense. He did not give any indication on the financial statement that he considered the will to be invalid.
None of the witnesses testified they observed Shirley exert any pressure on Gene to execute the will. Our review of the entire record reveals that Gene was a meticulous, detail person; that he worked regularly to the date of his death; and that he was not physically or mentally impaired from performing his daily tasks. There is no evidence Gene was ever confused about his estate. He acknowledged that he had a will and that Shirley was the executor. His letters and actions toward his wife demonstrated a strong bond of love for her.
After considering and weighing all of the evidence, we find the second element necessary for a jury finding of undue influence—an influence overcoming or subverting the testator's mind—is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
c. Execution of an Instrument he Would Not Otherwise Have Executed but for Such Influence
The third and final element that must be established to show undue influence is that the person would not have executed the document but for the influence. Id. at 922. Hatton's statements regarding Gene's declarations provide some evidence to support the finding, so we will address the factual sufficiency. The primary proof for this element is that the will is unnatural in its distribution of the testator's property. Id.
Gene's holographic will left his property to his wife and his sons, and was not unnatural. It is not unnatural when, in distributing property, to make one relative a larger bequest than another. Drewry v. Armstrong, 223 S.W. 281 (Tex. Civ. App.—Galveston 1920, writ ref'd).
We find there is insufficient evidence to support a finding that Gene would not have executed the will but for the influence of Shirley, and such finding is clearly wrong and unjust.
We sustain Shirley's contention that the jury finding that the 1998 holographic will was executed as a result of her undue influence is not supported by the evidence and is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
3. Testamentary Intent
The jury also found that Gene did not have testamentary intent at the time he executed the holographic will. Shirley had the burden of proof on this issue, and thus must show that the evidence established the testamentary intent as a matter or law or, alternatively, that the jury finding on the issue is against the great weight and preponderance of the evidence.
A valid will is a document executed with testamentary intent. The sufficiency of the intent does not depend on the maker's realization that he or she is making a will, or on the maker's designation of the instrument as a will, but on his or her intention to create a revocable disposition of the property to take effect after the maker's death. It is essential, however, that the maker shall have intended to express his or her testamentary wishes in the particular instrument offered for probate. Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 735 (1955); Trim v. Daniels, 862 S.W.2d 8, 10 (Tex. App.—Houston [1st Dist.] 1992, writ denied).
Whether there was testamentary intent on the part of the maker is a proper question in a proceeding to probate or in a contest of an application to probate. Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402 (1942); In re Brown's Estate, 507 S.W.2d 801, 803 (Tex. Civ. App.—Dallas 1974, writ ref'd n.r.e.). An instrument is not a will unless it is executed with testamentary intent. As described by the Texas Supreme Court, the "animus testandi does not depend upon the maker's realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect after his death." Hinson, 280 S.W.2d at 733.
Evidence Supporting the Jury's Verdict Finding No Testamentary Intent
The Steed sons rely on the testimony of Hatton and Van Steed to support the verdict of the jury. As previously stated, Hatton testified Gene told him he made the will to pacify Shirley and curb her spending. Van was asked if he thought Gene executed the 1998 document with the intent to actually distribute his estate and answered, "No, I do not." He was asked, "[D]o you think that he had testamentary intent when he created that document, . . . ." and answered, "No." Finally, Van responded he thought his father had ulterior motives in creating the will—which was to appease Shirley. Further, Hatton said he did not think Gene intended to give effect to that will. Hatton's testimony concerning Gene's statements constitutes some evidence in support of the jury verdict. We therefore will address Shirley's factual sufficiency argument.
Our discussion above addresses the only evidence supporting the jury finding—the testimony of Hatton and Van. Their testimony does not explain the facts and circumstances surrounding the execution of the will, but is their own opinion as to the thinking of Gene at the time he executed the will. It is thus extremely weak in a traditional intent review of this type, because intent is to be determined by the language used in the will—we are to ascertain not what the testator meant to express apart from the language, but what the words he has used do express. See Ayala v. Martinez, 883 S.W.2d 270, 272 (Tex. App.—Corpus Christi 1994, writ denied) (citing Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960)). In Brown, 507 S.W.2d at 803, the actual words used by the maker of an instrument are the primary subject of inquiry to resolve the question of testamentary intent. We now turn to the language of the document itself to determine the purpose of its making.
Evidence Supporting Shirley's Argument That Steed had Testamentary Intent
The language of Gene's holographic will is not ambiguous. Gene was a lawyer, and apparently a large part of his practice was in the wills and probate field. He had at one time served as a county judge, which included jurisdiction of wills and probate. The handwritten will is entitled "Last Will & Testament of Gene E. Steed" and is dated July 4, 1998. The will declares that it is meant to function as a will and that Gene was of sound mind and disposing memory. He specifically bequested to Van Steed, Dan Earl Steed, and Randy Gene Steed the surface of all lands inherited from Van Earl Steed in Gray County in fee simple forever, subject to all debt thereon. He left to his sons the land in Ochiltree County, specifically naming the lot and blocks. He then left the residue to his wife, Shirley, and appointed her as independent executrix. Jerry Pratt, an attorney, testified the will appeared to have been executed by a person with the intent to make a last will and testament. The words of the will leave no doubt that this was Gene's will and clearly expressed his intention as to the disposition of his estate on his death.
Even if a will is doubtful, evidence of the circumstances surrounding the execution of the will is admissible for the purpose of enabling the court to read the will in light of the circumstances and discover the meaning attached by the testator to the words used by him or her. Such evidence is admissible only for the purpose of explaining the meaning of the language, for the intent of a testator must be ascertained from the meaning of the words used by him or her in the will and from those words alone. Kennard v. Kennard, 84 S.W.2d 315, 320 (Tex. Civ. App.—Waco 1935, writ dism'd).
The testimony of Van and Hatton does not aid the Court in determining, based on the facts and circumstances surrounding the execution of the will, what the meaning of particular words might be, but simply attempts to substitute their opinion that, even though Gene clearly expressed his intention in the will, he did not mean what he clearly expressed.
Other Considerations
The Steed sons argue that the evidence supports a finding of lack of testamentary intent based on Shiels v. Shiels, 109 S.W.2d 1112 (Tex. Civ. App.—Texarkana 1937, no writ). In Shiels, the testator was to be inducted into a Masonic Lodge office. One requirement of the society was that he write a will during the ritual. He protested that he did not want to make a will, but was prevailed on to do so during the induction process. This Court held that the time, place, and circumstances under which the will was executed were material to determining testamentary intent. In explaining the rationale, we stated that Shiels protested the making of the will, but then proceeded to prepare it. We stated that questions remained to be answered: Was his intention to execute the will merely a part of the ceremony? Did he execute it rather than suffer from dismissal from the class and be denied further initiation, with the intention that it operate only as a formal compliance with the requirements of the order?
In contrast, here there is no evidence of any unusual or extraordinary circumstances at the time the will was executed that would raise a question of whether the words of the will were intended to have some meaning other than as explicitly stated. There is no proof in this case paralleling the evidence discussed in Shiels about the circumstances surrounding the creation of the document, but only speculation and presumption about the opinions of two people regarding what Gene was thinking.
Unlike Shiels, this evidence therefore does not support a suggestion Gene did not intend for this will to operate as a testamentary disposition. As a lawyer, Gene was familiar with the effect of a document entitled Last Will and Testament which disposed of his property. He had prepared hundreds of wills in his law practice of over forty-five years. As a practicing wills and probate lawyer, Gene was fully aware of the consequences and meaning of a will clearly and completely disposing of his assets "at the time of my death." The words of the will clearly show Gene's intent.
The Steed sons also rely on Luker v. Youngmeyer, 36 S.W.3d 628 (Tex. App.—Tyler 2000, no pet.). In Luker, the decedent had left a handwritten document consisting of three pages. The document was not signed, but had the name of "Margaret E. Whitely Charitable Trust" on what the court designated as page A. The court found page A was a separate nontestamentary document listing changes or potential changes to a trust. The court held that Whiteley did not intend for her name on page A to express her approval of the testamentary provisions contained on pages B and C as her will. As such, her name did not constitute her signature, and therefore, the writings were not a valid will. Id. at 631. That case is clearly distinguishable from this one.
Based on our review of the entirety of the record and all of the evidence, for the reasons explained, the failure to find that Gene executed the will with testamentary intent is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.
4. The Computer Will
The Steed sons, in their cross-appeal, contend they proved as a matter of law that the 2001 will found on Gene's computer after his death was executed or that the jury answer finding that it was not executed was made against the great weight and preponderance of the evidence. Alternatively, the Steed sons contend the district court erred by determining that, by amending their pleadings to seek probate of that will, they had waived their right to seek probate of the 1980 will.
A will was found on Gene's office computer dated November 20, 2001. It was labeled as a final draft of his will. No signed copy was ever produced. The jury was submitted a series of questions concerning the execution by Gene of a will on November 20, 2001. The first of these questions inquired if Gene executed "an instrument which purported to be his last will and testament" on that date; the jury answered in the negative. Based on that answer, the jury was instructed not to answer the remaining questions. The remaining questions asked if the will had been executed with the required formalities, whether it was lost, if the content of the lost will had been substantially proved, if petitioner's Exhibit No. 5 was an exact copy of the lost will, if a diligent effort had been made to find it, if the will was last seen in the possession of Gene, if Shirley was given a duplicate of the will, and if Shirley was last in possession of a duplicate copy.
We first look to see if there is any evidence to support the jury finding that no will was executed by Gene November 20, 2001. It is important to understand that the jury did not answer any questions concerning the validity of the execution of the will, whether it was lost or if a diligent effort had been made to find it, or whether the will produced was a true copy of the one Gene actually executed. The only question the jury answered was—did Gene execute a document which purported to be his last will and testament. The evidence directly supporting the jury finding that Gene had not executed the will is that the will produced to the jury was not executed. There was also evidence that the Steed sons took the computer hard drives from Gene's office and that the drives were not recovered until several months later.
Linda James testified she was a document examiner. Her primary testimony concerned her opinion that the 1998 handwritten will was in Gene's own hand. However, even though she acknowledged that she was not an expert in the computer field, she testified that, in her opinion, the November 20, 2001, will was not reliable since it was computer generated and the dates shown for the creation of the will could be easily changed. She did not, however, examine the computer for a determination of whether such a date change had in fact occurred. We find some evidence exists to support the jury finding.
Was the Evidence of no Execution Factually Sufficient to Support the Verdict
We now review the entirety of the record and all of the evidence to determine whether the evidence was factually sufficient. The Steed sons rely on the testimony of the two subscribing witnesses and the notary public to establish that a will was executed by Gene November 20, 2001.
Candice Hague, Gene's former legal secretary, who was not employed by him at the time, testified Gene called her to come from her home to his office, where she notarized a will after Larry Money and Hatton signed it as witnesses. She testified that Gene went through the usual procedure, confirming that it was his will, that he was over eighteen years of age, of sound mind, and that any other will would be revoked. She testified she did not review the contents of the will and could not testify that the will produced was the one she had notarized. It also appears that, although her "notary book" was there, Steed did not sign it on that date.
At the deposition, at counsel's request, Hague had accessed the hard drives on the law firm's computer and found four versions of wills with four time stamps—the last three less than twenty minutes apart between 8:30 p.m. and 8:46 p.m. November 19, 2001. The one offered was listed in the computer as "WillGene E Steed final 3."
The evidence shows that Hague had filed a sexual harassment claim against Gene after she quit her job, and that she lost—but it is not clear how long that occurred before the will signing. Money worked next door to the law office, and the evidence was that he was often asked to witness wills. Money testified that he was requested to come to Gene's office to witness his will, that he heard Gene claim this as his final will, revoking all others, and that Money signed as a witness. He testified he had not read the will and could not identify the document proffered as the same document that he signed.
Hatton, Gene's long-time office assistant, testified Gene asked him to come by on the morning of November 20 in connection with Gene's will. He testified Gene asked him to read the will, which he did, and then further testified that the proffered document was an exact copy of the will Gene signed November 20, 2001, and which Hatton had signed as a subscribing witness.
Shirley did not impeach Hatton's testimony about the will. However, she testified that Hatton had originally come to Gene for legal advice because he had been accused of stealing horses, that he had told Gene he worked for the Central Intelligence Agency, and that he told her he had nine college degrees and 233 hours of college credit. She testified that, when she heard Hatton testify in Perryton, he had stated that he could not remember where he went to college and that he had two high school degrees, but could not remember where he went to high school. (At this trial, he testified he did have the college hours, from the Air Force Community College and from a Bible Institute in Arizona, that he had a GED, and that he had also obtained a diploma after entering the military from Cooper High School in Abilene.) She testified that Hatton had "street smarts" and that he intrigued Gene, but that he was not a person Gene would have named as a trustee in his will.
The testimony of James concerning the reliability of the computer will was contradicted by Nickie Drehel, a computer specialist from the Houston Police Department. Drehel testified that it would be very simple to detect if a computer date had been manipulated and that he had examined the computer in question and found no such manipulation.
When weighing all of the evidence, we find that the two subscribing witnesses testified that they personally witnessed Gene execute a document and declare to them it was his last will and testament. Further, the notary public testified she witnessed it and signed and documented the will in the appropriate places. The contrary evidence is that no executed will was produced, that there were suggestions Hague would not have been a logical choice to serve as notary since she had previously filed a sexual harassment charge against Gene, and that Hatton would not be Gene's reasonable choice for serving as the trustee under the will. The suggestion that the date of the preparation of the will might have been manipulated was contradicted by an expert witness who had actually examined the computer. We believe that the relatively uncontradicted direct testimony of the two subscribing witnesses and the notary public is highly probative and persuasive. This question is confined to whether Gene executed a will November 20, 2001; it does not deal with any of the other issues submitted to the jury but not answered.
We find that the jury answer is not factually supported by the evidence and that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
5. Was the Steed Sons' Attempt to Probate the 1980 Will Waived
In the alternative, the Steed sons next contend that, if the 1998 will was not valid, the district court erred by refusing to allow them to pursue probate of the 1980 will. Probate of that will was sought alternatively in the live pleadings and was presented as an exhibit at the trial. On its face, the 1980 will was executed with all proper formalities and was legitimately self-proven. Thus, the Steed sons allege that, when the jury failed to find facts sufficient to admit either the holographic 1998 will or the 2001 will to probate, the 1980 will necessarily remained alive and unrevoked. Since we are remanding the case for a new trial, we will address this waiver argument.
Counsel directs us to nothing in which the trial court declined to permit them to pursue the probate of the 1980 will either directly or in the alternative. The Steed sons did not present any jury issues on that will and did not request the district court to take any form of action in connection with that will.
The pleadings directly reference that will and ask that, if the other wills were found to be invalid, that the 1980 will be probated. Counsel correctly points out that Tex. Prob. Code Ann. § 84 (Vernon Supp. 2004–2005) states that, when a will is shown to be self-proven, "no further proof of its execution . . . required to make it a valid will shall be necessary." The will meets the requirements of a self-proven will.
If resolution of a factual issue is required to establish a theory of recovery or defense, the failure to request a jury instruction on that issue waives the claim on appeal. Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 515 (Tex. 1998). On the other hand, where no factual issue is involved and the claim or defense is conclusively established, no request for jury instruction or submission is required to preserve the issue for appellate review. Chappell Hill Bank v. Lane Bank Equip. Co., 38 S.W.3d 237, 245 (Tex. App.—Texarkana 2001, pet. denied); Int'l Aircraft Sales, Inc. v. Betancourt, 582 S.W.2d 632, 636–37 (Tex. Civ. App.—Corpus Christi 1979, writ ref'd n.r.e.).
In the final judgment, the district court acknowledged that both wills were before it for decision. The court then found "that as a matter of law the probate of the 1980 will was waived." That statement does not find support in the record. If neither of the prior wills was valid, then neither could serve to revoke the 1980 will. The record does not show that the Steed sons affirmatively abandoned that cause of action, and the record does show that the will was before the court and that it was self-proving, thus requiring no action by a jury to validate it.
Under these facts, we conclude that waiver has not been shown and that the district court erred by so finding.
We reverse the judgment of the district court and remand this case for a new trial consistent with this opinion.
Jack Carter
Justice
Date Submitted: October 13, 2004
Date Decided: December 17, 2004