in the Estate of J. B. Pilkilton

AFFIRM; Opinion issued February 6, 2O13

In The
tnirt nf pia1
Fift1! 3itrirt uf Lixa at Ja11a
No. 05-I 1-00246-CV

IN THE MATTER oF THE ESTATE OF j. IL PILKILTON, DECEASED

On Appeal from the County Court at Law No. 1
Grayson County, Texas
Trial Court Cause No 2009-1-166P

MEMORANDUM OPINION
Before Justices O’Neill, FitzGerald, and Lang-Miers
Opinion By Justice Lang-Miers

This appeal involves a will contest concerning the estate of J. B. Pilkilton (Pilkihon). The

appellants are Catherine C. Pilkilton, Fred Pilkilton, Jr., and Roger Pilkilton. the family of Pilkihon’ s

brother who predeceased him, Appellees Cynthia Marie Smith and Jeffery Allen Pilkilton are

Pilkilton’s grandchildren. Appellants contested a will executed by Pilkilton dated February 11,2007

and were proponents of a will executed by Pilkilton dated May 8, 2006. In four issues, Appellants

argue that the trial court erred by finding that the 2007 will was executed with the requisite

formalities, that Pilkilton had testamentary capacity at the time he executed the 2007 will, that it was

not collaterally estopped from determining whether Pilkilton had testamentary capacity, and that

Appellees did not exercise undue influence. Because all dispositive issues are settled in law, we

issue this memorandum opinion. TEx. R. App. P. 47.2(a), 47.4. We affirm.
 ICK(ROt’I

Pilkilton (lied in 2009. A week after Pilkilton’s death, Pilkilton’s sisterimlaw Catherine C.

Pilkilton filed an application for probate ot a selLproved 2006 will and for issuance of letters

testamentary. The residuary beneficiary of the 2006 will was Fred Pilkihon, Sr., Pilkilton’s brother

and Catherine’s husband. \‘Vhen her husband, Fred, Sr., died in February 2007. Catherine became

the residuary beneficiary. The 2006 will named Roger and Fred Pilkilton, Jr., Catherine and Fred

Pilkilton, Sr.’s children and Pilkilton’s nephews, as contingent residuary beneficiaries.

Ten days after Catherine filed, Pilkilton’s granddaughter Cynthia Marie Smith filed an

application for probate of a selfproved 2007 will and for issuance of letters testamentary. The

residuary beneficiaries of the 2007 will were Pilkilton’s grandchildren. Smith and Jeffery Allen

Pilkilton. The 2007 will specified that Appellants were not to receive any of Pilkilton’s estate.

Appellants filed a contest to the 2007 will in County Court at Law No. I in Grayson County.

After a bench trial. the court ordered that the 2007 will should be admitted to probate. that

Appellants acted in good faith and with just cause in their efforts to have the 2006 will admitted to

probate, and that Catherine, the designated independent executrix under the 2006 will, be allowed

attorney’s fees and expenses out of Pilkilton’s estate.

The court subsequently issued findings of fact and conclusions of law, including:

1. The proponents of the Last Will and Testament of J. B. Pilkilton dated February
11, 2007, proved that said will was properly executed with all the formalities and
solemnities required by law.

2. J.B. Pilkilton had the necessary testamentary capacity to execute a will on
February 11, 2007, and this court is not collaterally estopped from finding such
capacity by any previous ruling or finding of the Grayson County Court at Law, No.
2, in the guardianship proceeding, to-wit, CN 2007-56G.

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 3. The Last Will and Testament of 3. B. Pilkilton dated February II. 2007. should
he admitted to probate.

5. The contestants tailed to prove by a preponderance ot the evidence that at the time
of the execution of the February 11 2007, will, J .13. Pilkilton was unduly influenced
,

by any person which affected the terms of said will.’

Appellants filed a inot ion for new trial, which the court denied. This appeal followed.

STANIMRD OF REVIEW

Appellants argue that there was legally insufficient evidence to support the findings that the

2007 will was properly executed and that Pilkilton had testamentary capacity. They also argue that

there was factually insufficient evidence to establish that the 2007 will was properly executed, that

Pilkilton had testamentary capacity, and that he was not unduly influenced.

We review the legal and factual sufficiency of the evidence to support a trial court’s findings

by the same standards we apply when reviewing evidence supporting a jury’s verdict, Catalina v.

Blasdel, 881 S.W.2d 295, 297 (Tex. 1994): Lont i. Long, 196 S.W.3d 460,464 (Tex. App.—Dallas

2006, no pet.). In reviewing a challenge to the legal sufficiency of the evidence, we consider

evidence that supports the finding if a reasonable fact-finder could have considered it and disregard

contrary evidence unless a reasonable fact-finder could not have disregarded it. See Akin, Guinp.

Straus Hatier & Feid, L.L.P. t’. Nat’l Dcv. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009)

(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)): Wright Grp. Architects-Planners,

P.L.L.C. v. Pierce, 343 S.W.3d 196, 199 (Tex. App.—Dallas 2011, no pet.). We will sustain a legal

sufficiency challenge “when (a) there is a complete absence of evidence of a vital fact. (b) the court

is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a

Appellants argue on appeal that Appcllees had the burden o establish an absence of undue influence, not that the trial court erred
1
by applying
the incorrect burden of proof.

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 ‘ ital fact, (c ) the evidence oHered to proe a vital fact is no more than a scintilla, or (d) the evidence

conclusive! establishes the opposite of the vital fact.” Akin, (Jump, 299 S.W.3d at 115 (quoting

Merreli Dow Pharms,, Inc. e. Hciener, 953 S.W.2d 706. 7 Ii (Tex. 1997)). Evidence is no more than

a scintilla if it is “‘so weak as to do no more than create a mere surmise or suspicion’ that the fact

exists.” Id. (quoting lcroger icr. Ltd. P’ship v’. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).

In reviewing a challenge to the factual sufficiency of the evidence, we consider all of the

evidence in the record, both supporting and contradicting the challenged finding, and will set aside

the finding only if we determine that the evidence supporting the finding is so against the great

weight and preponderance of the evidence as to make the finding clearly wrong and manifestly

unjust. See Orti: r. Jones. 91 7 S.W.2d 770, 772 (Tex. 1996) (per curiam): l’rahhakar i’. J’ritzgerald,

No. 05-l0-00126-CV, 2012 WL 3667400, at *4 (Tex. App.—Dallas Aug. 24, 2012, no pet. h.).

In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the

weight to he given their testimony. Wright Grp., 343 S.W.3d at 199. We are not a fact-finder and

may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of

fact, even if the evidence would support a different result. Id. When the evidence is conflicting, we

must presume that the fact-finder resolved the inconsistency in favor of the finding if a reasonable

person could do so. See City of Keller, 168 S.W.3d at 821; Wright Grp., 343 S.W.3d at 199.

PROPER ExEcuTION

In their first issue, Appellants argue that Appellees did not produce legally or factually

sufficient evidence to establish that the “2007 will was executed with the requisite formalitiesl
.1”

Applicable Law

In probate proceedings, it is the court’s duty to determine that the instrument offered for

probate meets the statutory requisites of a will before admitting the will to probate. In re Estate of

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Hudson, No. 05 II 00008CV, 201 1 WI. 5433689, at ‘3 (Tex. App.—Dallas Nov. 10,2011, no pet.)

(mem. op.). The requirements include that two or more credible witnesses must attest to it and

subscribe their names to the will in their own handwriting in the presence of the testator. 5cc TEX.

PIeB. CODE ANN. § 59 (West Supp. 2012). Any changes made in an original, proper1yexecuted will

are ineffective unless the changes were made with the formalities required to make a will. i’ullcn

e. Russ, 209 S.W.2d 63(, 636 (Tex. Civ. App.—Aniarillo 1948, writ ref’d n.r.c.).

One who offers a will with a selfproviiig certificate executed and attached makes out a prima

facie case that the will has been properly executed and may have the will admitted to probate if the

other requirements of section 88 of the probate code are fulfilled. Estate of Hudson, 2011 WL

5433689, at *3; sec TEX. PROB. CODE ANN. § 88 (West 2003) (stating proof required for probate of

a will): In re Estate of Roshorough, 542 S.W.2d 685, 688 (Tex. Civ. App.—Texarkana 1976, writ

ref’d n.r.c.). The opponent to the probate of the will must put on proof to rebut the proponent’s

prima facie case. Estate of Hudson, 2011 WL 5433689, at *3; Estate of Rosborough, 542 S.W.2d

at 688. The proponent may then chose to stand on the prima facie case or may choose to go forward

with evidence. Estate of Hudson, 2011 WL 5433689, at *3; Estate of Roshorough, 542 S.W.2d at

688.

Appellants’ Position

Appellants argue that the evidence establishes that the attorney who drafted the 2007 will

made changes to the 2007 will to correct a mistake after Pilkilton, the witnesses, and the notary

purportedly signed the will. Appellants claim that, because the 2007 will offered for admission to

probate did not contain any errors, “the only possible conclusion from the evidence presented by the

[Appelleesi was that the pages containing the mistakes were simply and erroneously replaced by the

corrected pages with there being no evidence provided by the [Appelleesi that a re-execution of the

—5—
document ever occurred.” As a result, Appellants argue, Appellees did not establish that the will

ollered lot probate was signed by the witnesses in the presence of the lestator Pilkilton as statutorily

required. nor did they establish the terms of the 2007 will before the changes were made.

Appellees’ Position

Appellees argue that the trial court correctly found that they carried their hurden to prove

proper execution, They argue that the attorney who drafted the will, Michael McGraw, may have

had trouble remembering “the mechanics of how I a mistake got corrected in relation to the signing

ceremony” but McGraw was clear that the changes were made before the will-signing ceremony took

place. They contend that the testimony of all people present at the will-signing ceremony was

consistent and that “no one testified that the signing took place before all changes were made; either

at trial, or in deposition.’

Discussion

En his deposition. McGraw testified that he remembered leaving Pilkilton’s home on February

11, the day the will was executed, to go to his office to make a correction to the will and returning

at least two hours later. McGraw also testified that the signed will was the final version. At trial,

he was not clear about when he made the correction but testified that the will was signed after the

correction was made. Maurine Potts and Ruby Smith, witnesses to the execution of the will, and

Stephanie McKinstry, the notary public, either could not recall or differed in their recollection about

whether McGraw left Pilkilton’s house on February 11 and then returned with a corrected will.

Appellants claim that the evidence was legally and factually insufficient because there were

conflicts in the testimony about whether and when corrections were made to the will. Although their

accounts vary, however, as to whether, when, and how the purported correction to the will took

place, no one testified that the execution of the 2007 will took place before all corrections were

—6—
 made. And regardless of whether there were conflicts in the evidence, mt was time province of the

judge, as factfinder, to resolve conflicts in the evidence. See City of Keller, 168 S.W.3d at 820;

White v. Harrison, No. 05l00 161 1CV, 2012 WL 6191348, at *5 (Tex. App.—DalIas Dec. 12,

2012, no pet.; .4ustin ‘. Weems. 337 S.W.3d 41 5, 427 (Tex. App.—llouston I 1st i)ist. j 2011 no
.

peL) jury, as factfinder, was judge of contradictory evidence, including conflicting deposition and

trial testimony).

Consequently, we conclude that claimed conflicts in the evidence did not render the evidence

insufficient and that the evidence is legally sufficient to support the finding that the 2007 will was

properly executed. Additionally, we conclude that the finding is not so against the great weight and

preponderance of the evidence that it makes the finding clearly wrong and manifestly unjust. As a

result, we also conclude that the evidence is factually sufficient to support the finding of proper

execution, We resolve Appellants’ first issue against them.

TESTAMENTARY CAPACITY

In their second issue, Appellants argue that Appellees did not produce legally or factually

sufficient evidence to support the finding that Pilkilton had testamentary capacity at the time he

executed the 2007 will.

Applicable Law

A testator has testamentary capacity when the testator has sufficient mental ability to

understand that he is making a will, the effect of making a will, and the general nature and extent of

his property. Long, 196 S.W.3d at 464. He must know his next of kin and the natural objects of his

bounty and the claims upon them. Id. He must also have sufficient memory to collect in his mind

the elements of the business transacted and hold them long enough to form a reasonable judgment

about them. Id.

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 Proponents ot a vill have the burden to proc testamentary capacity. St’igkr r. Seigler, 391

S.W.2d 403, 404 (Tex, 1965); Schindler ‘.Schindlcr, 119 SW,3d 923, 931 (Tex. App.—Dallas

2003, pet. denied) In determining whether a testator had testamentary capacity, the pivotal issue is

whether the testator had testamentary capacity on the day the will was executed. Long, 196 S.W.3d

at 464—65. But evidence of the testators state of mind at other times can he used to prove the

testators slate of mind on the day the will was executed if the evidence demonstrates that a condition

affecting his testamentary capacity was persistent and was likely present at the time the will was

executed, Id. at 465.

Appellants’ Position

Appellants argue that the evidence—including evidence of Pilkilton’s “existing dementia and

deteriorating health due to age” and his “having suffered a severlel closed head injury” about two

weeks before he executed the 2007 will—establishes that Pilkilton did not have testamentary

capacity. Appellants claim that medical records “reflected that the Decedent was suffering from

dementia which was exacerbated by the closed head injury, which left him confused, disoriented,

and unable to comprehend his business, including the business of making and executing a Will.”

Appellants’ Evidence

Appellants’ expert witness, Dr. Myron Weiner. a geriatric psychiatrist, conducted a post

mortem diagnosis of Pilkilton based upon medical records and attorney ad litem reports. transcripts,

and court orders from the guardianship proceeding. Among the medical records that he reviewed

were records dated from the day Pilkilton suffered a head injury in late January 2007 through the day

after he executed the 2007 will in mid-February 2007. These records refer to Pilkilton’ s confusion,

dementia, lack of orientation as to either person, time, or place, and cognitive decline. Weiner

concluded that Pilkilton did not have testamentary capacity when he executed the will on February

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 Ii. Weiner stated that he “specifically relied mostly on the nurse’s notes” and stated that the nurses’

notes br February Ii were “j c jonceivahl y I” inaccurate because they indicated that Pilk iRon was

confused during the day, evening, and night, but Pilkilton was away trom the nursing
home facility
with family [rom :00 am. to X:0() p.m. that day. Weiner also stated that the other
“clear evidence”
of incapacity on February Ii, 2007 that he reviewed was a nurse’s note from that date
that said that
Pilkilton was confused at times, but he admitted that “the flip side of that [wasj
that he’s not
conlused at Limes! .1”
Dr. John Tyson, Pilkihon’s personal physician, testified: “From the injuries that he had.
Ijust
don t think that he had the capability to execute that I will I, and that’s my medical judgm
ent.” Tyson
testified that he had no reason to believe that a note dated Febniary 1, 2007 by Dr. On
Lotan. who
treated Pilkilton after his fall, stating that Pilkilton had “behaviors consistent with
incipient
dementia was inaccurate. Tyson testified that incipient dementia is “dementia that comes
and goes”
and it usually means that the patient “will have episodes of the dementia and then he
may have
episodes of clearing.” And he testified that “if the people who observed him on Februa
ry 11th when
he signed the Will said he seemed fine to them, seemed like the same old J. B. we’ve known
for fifty
years,” their impressions would “be an indication that if he had dementia at all it
was incipient
dementiaj .1”

James Harris, a long-time friend of Pilkilton’s, described how, prior to Pilkilton’s head

injury, “his short-term memory seemed to be getting a little bad” and how “after his accide
nt he went
down hill very quickly.” Harris also testified that he did not see Pilkilton between Januar
y 25, 2007
and March or April 2007.

Harold Franks was along-time acquaintance of Pilkilton’s. Franks testif ied that Pilkilto
n did
not know who Franks was when Franks visited Pilkilton in the hospital and the nursing
home after

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his fill, and Franks did not think Pilkilton knew that he was in the hospital. Franks also testified

that he “was looking at Pilkilton I toni the choir bit” at church on February Ii . lie said that

Pilkihon “ lust wasn’t hiInselfl ,“ did not have his usual smile, and “starred [sic I of I into space.”

But Franks did not talk with Pilkilton that day. When asked whether Pilkilton led a prayer during

the church service that day—as Appellee Smith testified had happened—Franks responded that he

did not recall Pilkilton leading a prayer, and that “Itihe pastor never had a member of the

Congregation say prayers.” But Franks said that Pilkilton “might have done it when IFranksl was

not in the serviccl .1’.

Thomas Redwine, who was Pilkilton’s attorney ad litem in the guardianship proceeding,

testified that he saw Pilkilton twelve to fifteen times after he was appointed, and that Redwine “never

saw him in a situation where he didn’t need a guardian.” But Redwine also testified that he first saw

Pilkilton on February 13, 2007, the (lay that Pilkilton had moved to a new nursing home and that the

move would “have some effect on maybe a person’s mental state.”

Appellants argue that the doctors reports about examinations of Pilkilton conducted six days

before and five days after he executed the 2007 will, reports by Redwine in Pilkilton’s guardianship

proceeding, and court orders in that guardianship proceeding showed that he lacked testamentary

capacity. Appellants also contend that Potts, a witness to the execution of the will, testified at the

guardianship proceeding on March 15, 2007 that Pilkilton was in better condition at that

guardianship proceeding—when a judge ruled Pilkilton was incompetent—than he was in February

2007 when he signed “estate planning documents” and that her testimony supports their position.

In addition, Appellants argue that testimony by those present at the 2007 will execution reflected that

there were no questions asked of or declarations made by Pilkilton to indicate that Pilkilton “knew

the nature and extent of his property” or “the natural objects of his bounty” at the time he executed

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 the will. See Long. 1% S.W3d at 464,

Appellees’ Position

Appellees argue that the trial court correctly found that Pilkilton “had the necess
ary
testamentary capacity to execute a will on February 11, 2007” Appellees state that Appellants

“could produce no evidence, nor did they produce a single witness Iwith one exception who
saw
Pilkilton that day hut did not speak with himj that testified that they saw J.B. Pilkilton on
February
ii 2007” or that testifIed “that at the time the decedent signed his Last Will and Testam
ent on
.

February 11, 2007, he lacked the capacity required by law.” Appellees state that, in
contrast,
Appellees “produced eight witnesses that testified to Mr. Pilkilton’s mental state on
February 11,
2007.” They also argue that the testimony by five witnesses presented by Appellants
to establish
Pilkilton’s lack of capacity had weaknesses and inconsistencies. They contend that “Itihe

circumstantial evidence presented by Appellants was simply not enough to overcome
the direct
eyewitness testimony presented by Appellees in meeting their burden at trial on capaci
ty.”

Appellees’ Evidence

Ruby Smith, who witnessed the 2007 will and had been Pilkilton’s close friend
and
companion for years, testified that Pilkilton’s mental condition on February 11 “was
as good as it
was when Ishel met him in 2000 or whenever it was.” She further testified that Pilkilton “was
angry
that day, but his mental capacity—he knew what he was doing
.1” She testified that he “knew the
people that he wanted to take care of in the Will and he knew what properties he had”
and that “he
understood the effect of his making a new Will.”

Maurine Potts, the other witness to the 2007 will, had known Pilkilton for “sixty or so” years.

She testified that, on February Ii, he knew what his property consisted of, who his family membe
rs
were, and that he was signing a will. She testified that Pilkilton called her and asked
her to come

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to his home to witness his will .She also testified that, on February II at Pilkilton’s home. Pilkilton

“told her1 what he wanted to do”, which was that “Ihic was making a Will, and he wanted Iherl to

witness it”

Michael McGraw, the attorney who drafted the will, testified that Pilkilton “was aware that

he was signing, his last Will and Testamenti .j” “that he knew the effect of making a new WilI[. I” and

that he “knew what he wanted done with the Will. I” McGraw also testified that-—”at the time the

Will was signed”—”[Pilkilton] knew who he was. He knew where he was. He knew who was in

the room.”

Stephanie McKinstry, the notary. was also present at the execution ceremony. She testified

that Pilkilton appeared “to be of a normal state of mind” on February 11. did not appear to he

confused, and was “very clear headed.” She had known Pilkilton since she was a young girl, and she

testified that she did not notice any difference in “the way he talked or his thought processes” on

February 11 from when she had talked with him on prior occasions. She testified that Pilkilton

“understood what was being told to him” and what lie was signing, and that “he knew what he was

saying, he knew what he was angry about, and he knew what he wanted.” She testified that she

would not have notarized his signature if she “felt like he didn’t know what he was signing[.j”

Appellee Cindy Smith, Cindy’s husband, Stan Smith, and Cindy and Stan’s son, Danny

Smith, all testified that Pilkilton had normal conversations with them on February 11. Danny

testified that, when he talked with Pilkilton right after he executed the will, Pilkilton did not seem

disoriented. Cindy testified that, before and after Pilkilton signed the will, he “appear[edj normal

in all respects in terms of his state of mind[.J”

Discussion

Because the pivotal issue is whether the testator had testamentary capacity on the day the will

—1 2—
was executed, we first review the evidence about Pilkihon’s testamentary capacity on that day.

Long, 196 SW.3d at 4M—65. Only four people other than the testator were present in the room

when he reviewed and signed the will. Each ot those four people testified that they believed he knew

what he was doing and that he was aware that he was signing his will, McGraw and Ruby Smith

testified that he knew the effect ol signing the will. Potts and Ruby Smith testified that he knew what

his property consisted of. Potts and McGraw testified that he knew who his family members were,

and Ruby Smith testified that “he knew the people that jsicl he wanted to take care of in the Willi.]”

James Harris said that he saw Pilkilton at church that day and that he did tint seem to be

himself, hut Harris did not talk to him. A nurse’s note in records from the facility where he lived

stated that, on the day he executed the will, he was confused at times. But, as Appellants’ expert

witness testified, the “hip side of this note was that Pilkilton was not confused at times. And

because Pilkilton was away from the facility from eight o’clock that morning to eight o’clock that

night, the accuracy of the nurses’ notes indicating that he was confused during the day, evening, and

night was questionable. Additionally, Cindy Smith, Stan Smith, and Danny Smith testified that he

appeared normal.

In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the

weight to be given their testimony and resolves conflicts in the evidence. See City of Keller, 168

S.W.3d at 819—20; Wright Grp., 343 S.W.3d at 199; White, 2012 WL 6191348, at *5 The fact that

there are conflicts in the evidence does not mean that the evidence is not sufficient to support the

findings. See McKinnev Indep. Sc/i. Dist. v. C’arlisie Grace, Ltd., 222 S.W.3d 878, 885 (Tex.

App.—Dallas 2007, pet. denied) (stating “opinions are not legally insufficient simply because the

opinions contradict one another”). Although evidence was presented that tended to show that he had

dementia, Alzheimer’s disease, and other conditions that might affect his mental capacity, the only

—13—
testimony from people who actually saw him and talked to him that day supported the courts finding

that he had the necessary testamentary capacity that clay.

We conclude that the evidence is legally sufficient to support the finding that Pilkilton had

testamentary capacity at the time that he executed the 2007 will. In addition, we conclude that the

finding is not so against the great weight and preponderance of the evidence that it makes the finding

clearly wrong and manifestly unjust. Consequently, we also conclude that the evidence is factually

sufficient to support the finding that Pilkilton had testamentary capacity. We resolve Appellants’

second issue against them.

CoLLATERAL EsT0PPEL

In their third issue, Appellants argue that the trial court erred in finding that collateral

estoppel did not preclude the court from determining whether Pilkilton had testamentary capacity

to execute a will on February 11, 2007 because another court in a guardianship proceeding

“previously held that the Testator did not have the necessary testamentary capacity to execute a Will

on February 11, 2007.”

Applicable Law

Collateral estoppel prevents the relitigation of identical issues of law or fact that were

actually litigated and were essential to the final judgment in a prior suit. Texas Dept. of Pub. Safety

v. Petta, 44 S.W.3d 575, 579 (Tex. 2001); MGA Ins. Co. v. Charles R. Chesnutt, P.C. 358 S.W.3d

808, 817 (Tex. App.—Dallas 2012, no pet.). When a party seeks to assert the bar of collateral

estoppel, the party “must establish that (1) the facts sought to be litigated in the second action were

fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first

action; and (3) the parties were cast as adversaries in the first action.” John G. & Marie Stella

Kenedy Mem 7 Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002) (quoting Sysco Food Servs.,

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Inc. i’. Tra,p,icII, 890 S. W.2d 796, 8() 1 (Tex 1994)).

Factual Background

On February 13, 2007, two days atier the execution of the 2007 will, Appellant Fred

Pilkilton, Jr. t1ed an application in the County Court at Law ol Grayson County to he appointed

temporary guardian of Pi1kiltons person and estate. He claimed that Pilkilton was “totally

incapacitated” and alleged that Pilkihon had “expressed in a written Durable Power of Attorney that

it is his preference that I Fred. Jr. I manage his estate and thus I Fred. Jr.j would have a preference to

serve as the temporary guardian.” He also alleged that Jefkry Pilkilton and Smith had approached

Pilkilton on or around February 8, 2007 while Pilkilton was incompetent and obtained Pilkilton’s

signature Ofl a power of attorney “for the purposes of wrongfully taking control of IPilkilton’sI

person and estate.” He contended that Jeffery Pilkilton and Smith were “taking possession and

control of both the Person and the financial assets of IPilkiltoni, by use of... invalid instruments”

including “a General Power of Attorney and possibly a General Power of Attorney for Health Care.”

He claimed that. “tim order to protect IPilkiltoni from these wrongful actions, a Temporary

Guardian needs to immediately be appointed.”

Smith filed a contest to Fred, Jr.’s application for appointment stating that she had “been

selected as guardian by J.B. Pilkilton. . . and this court must enforce that choice.” She also alleged

that “the Power of Attorney the applicant is seeking to have enforced was revoked on February 7,

20071,1” and that “J.B. Pilkilton signed a new power of Attorney granting the authority to Cynthia

M. Smith.” In addition, Smith claimed that appointment of Fred, Jr. as Pilkilton’s guardian would

not be in Pilkilton’s best interest, and that she would be better qualified.

After a hearing, the County Court at Law No. 2 issued an Order Appointing Temporary

Guardians on March 16,2007 that (1) determined there was “substantial evidence that” Pilkilton was

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 “an incapacitated person and in need ol a temporary guardian to protect his estate and person
; (2)
appointed Fred Pilkilton, Jr. as temporary guardian of Pilkiltons person and l3ank of Texas,
N.A!
as temporary guardian of his estate; (3) found that Smith was disqualified to serve
as temporary
guardian because her conduct during Pilkilton’s incapacity “demonstrate
ldi that Ms. Smith I wasj
not capable ol properly and prudently managing and controlling [Pilkilton} or of protect
ing

I Pilkiltons interests and weliarel 1”
The l’ol lowing month, Fred Pilkilton, Jr. and Bank of Texas, N.A., as temporary guardi
ans
ofPilkiltons person and estate, filed an application to make the temporary guardianship perman
ent.
The applicants claimed that Pilkilton was “‘totally incapacitated’ as defined by Texas law.”
After
a hearing, the County Court at Law No. 2 issued an Order Making Temporary Guardi
anship
Permanent on May 11, 2007. The court found, “J. B. Pilkilton is totally without capacity
and lacks
the necessary capacity as provided by the Texas Probate Code to care for himself and to
manage his
individual property as a reasonably prudent person, based on reoccurring acts or occurr
ences within
the last six-month period, and that a full guardianship of both the person and estate ofJ.
B. Pilkilton,
the incapacitated person, should be granted.” The court appointed Fred, Jr. as guardian
of Pilkilton’s
person and Bank of Texas, N.A. as guardian of his estate.

Appellants’ Position

Appellants argue that “the issue of J. B. Pilkilton’s mental capacity to execute estate
planning
type documents on or after February 8, 2007, was actually litigated and determined by the fact
finder
in the Guardianship proceeding” and “is identical to the issue in this Will Contest procee
ding as to
whether J. B. Pilkilton had the necessary mental or testamentary capacity to execute the
purported

‘The Order Appointing Temporary Guardians referred to Bank of Texas Trust, but the Application
to Make Temporary Guardianships Permanent
and the Order Making Temporary Guardianships Pennanent referred to Bank of Texas. NA.
For consistency, we refer to the entity as Bank of Texas.
NA.

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February 11, 2007 Will.” Appellants contend that the other court found “that J. B. Pilkilton was

without mental capacity during the time that the Appellee. Cynthia M. Smith. alleges he validly

eXecute(l both the purported February 8, 2007 Power of Attorney, and the February ii, 2007

purported Will” and that this finding was essential to the outcome of the guardianship proceeding.

Appellees’ Position

Appellees argue that the trial court correctly found that collateral estoppel did not apply

because the issue in this will contest—Pilkilton’s testamentary capacity on the day that he executed

the 2007 will—was not identical to the issue litigated in the guardianship proceeding, was not fully

and fairly litigated iii the guardianship proceeding, and was not essential to that court’s judgment.

Appellees concede that the guardianship court found that Pilkilton lacked capacity generally, but

argue that the court did not rule on the question of Pilkilton’s capacity on February 11 at the time

he executed the will. Appellecs argue that the guardianship court found only that Pilkilton lacked

capacity to execute a preference of guardian on February 8 2007, and that it did not find, as

Appellants allege, that Pilkilton lacked capacity to execute “estate planning documents” on or after

February 8, 2007. Appellees also argue that the court’s order finding that Pilkilton warranted a

guardianship “based on reoccurring acts or occurrences within the last six-month period’ per

Probate Code Section 684” was not—as Appellants argue—a finding that Pilkilton “was completely

without capacity for six months prior” to the guardianship hearing. See TEX. PROB, CODE ANN. §

684(c) (West 2003). Additionally, they argue that the issue of Pilkilton’s capacity was not fully and

fairly litigated because, at the temporary guardianship hearing, Appellees “were not afforded an

equal opportunity to present facts” and, at the permanent guardianship proceeding, the court decided

the motion for permanent guardianship “as if it were uncontested, because of a defect in the

pleadings.”

—17--
 1)iscussion

A finding of incapacity in a guardianship proceeding is different from a finding of a lack of

testamentary capacity in a will contest. See Evans c. Allen, 358 S.W.3d 358, 366—69 (Tex.

App. ——Houston 1 st 1)ist. j 2() II no pet. > (stating “a tes tator under a guardianship does not

necessarily lack testamentary capacity to execute a will”); Stephen v. Coleman, 533 S.W.2d 444,447

(Tex. Civ, App—Fort Worth 1976. writ rcf’d nr.e.) (finding, when testator was placed under

guardianship after the (late that he executed his will, that because “there was no adjudication that the

testator was incompetent on the date that the will was signedl..J” then “there was no presumption that

the testator did not have testamentary capacity on the date he signed the will”); Clement v. Raine’,

50 S.W.2d 359, 359 (Tex. Civ. App.—Texarkana 1932, writ ref’d) (stating that a person under a

guardianship is not necessarily incompetent to make a will). And the court in the guardianship

proceeding did not determine that the testator did not have testamentary capacity on February 11.

Consequently, the issue involved in this will contest, Pilkilton’s testamentary capacity on February

11. 2007, is not identical to the issue that was fully and fairly litigated and essential to the judgment

in the prior guardianship proceeding. See Petta, 44 S.W.3d at 579; MGA, 358 S.W.3d at 817.

Because of that, we do not need to address the other element of collateral estoppel.

We conclude that the trial court did not err in finding that the court was not collaterally

estopped from determining whether Pilkilton had testamentary capacity at the time he executed the

2007 will. We resolve Appellants’ third issue against them.

UNDUE INFLUENCE

Appellants argue that the trial court erred in finding that Appellees did not exercise undue

influence over Pilkilton at the time he executed the 2007 will because there was factually insufficient

evidence to support that finding.

—18—
 Applicable Law

While testamentary incapacity indicates the want of intelligent mental power, undue

influence indicates the existence of a testamentary capacity subjected to and controlled by a

dominant influence or power. Rothermel v. Duncan, 369 SW,2d 917, 922 (Tex. 1963); Long, 196

S.W.3d at 466—67. The party contesting the execution of a will generally has the burden of proving

undue influence. See Rothermel, 369 S.W.2d at 922; Quiroga v. Mannelli, No. 01-09-0031 5-CV,

2011 WL 944399, at *5 (Tex. App.—Houston [1st DisLj Mar. 17, 2011, no peL)(mem. op.). The

contestant must prove the (1) existence and exertion of an influence (2) that subverted or

overpowered the testator’s mind at the time he executed the testament (3) so that the testator

executed a testament that he would not otherwise have executed but for such influence, Rothermel,

369 S.W.2d at 922; Long, 196 S.W.3d at 467. Evidence of a fiduciary relationship between the

testator and a proponent of the will, however, raises a presumption of undue influence and, in that

circumstance, the proponent has the burden to produce evidence to show an absence of undue

influence. Spillrnan v. Spillman ‘s Estate, 587 S.W.2d 170, 172 (Tex. Civ. App.—Dallas 1979, writ

ref’d n.r.c.); Price v. Taliajèrro, 254 S.W.2d 157, 163 (Tex. Civ. App.—Fort Worth 1952, writ ref’d

n.r.c.) (stating, where contestant alleges undue influence and fiduciary relationship existed, “the

burden rests on the devisee to show the fairness of the transaction by appropriate evidence”). But

this “presumption is not evidence of something to be weighed along with the evidence.” Spillrnan,

587 S.W.2d at 172.

Exertion of undue influence cannot be inferred by opportunity alone. Rothermel, 369 S .W.2d

at 923; Cotten v. Cotten, 169 S.W.3d 824, 827 (Tex. App.—Dallas 2005, pet. denied). There must

be some evidence that the influence was not only present, but in fact exerted in connection with the

making of the will. Rothermel, 369 S.W.2d at 923; Cotten, 169 S.W.3d at 827. Although weakness

—19—
of mind and body produced by infirmities of disease. age, or otherwise maybe considered as material

in establishing the testator’s physical incapacity to resist or the susceptibility of his mind to an

influence exerted, it does not establish that his mind was in fact overpowered or subverted at the time

the will was executed. See Rothermel, 369 S.W.2d at 923; Long, 196 S.W.3d at 467; C’otten, 169

S.W.3d at 827. Usually the exertion of undue influence is subtle “and by its very nature usually

involves an extended course of dealings and circumstances.” Rothermel, 369 S.W.2d at 922, But

not every influence exerted by one person on another’s will is undue. Id. Influence is not undue

unless the testator’ s free agency was destroyed and the testament produced expresses the will of the

person exerting the influence. Id. Even if one requests, entreats, or importunes another to execute

an instrument that makes a favorable disposition, the entreaties and importunities will not render the

instrument invalid based on undue influence unless they were so excessive that they subverted the

will of the maker. See ii Undue influence may be exerted through—among other ways—force,

duress, intimidation, excessive importunity, or deception used to try to subvert or overcome the will

of the testator and induce the testator to execute the instrument contrary to his will. Id.

Appellants’ Position

Appellants argue that “evidence and circumstances, either alone or when coupled with the

presumption that the [Appelleesi unduly influenced the Testator as a result of the existence of a

fiduciary relationship, demonstrate” that Appellees exercised undue influence over Pilkilton at the

time he executed the 2007 will. They contend that this evidence and these circumstances include:

(1) Pilkilton’ s weakened physical and mental condition made him susceptible to undue influence by

Appellees; (2) Smith arranged a meeting with Pilkilton and attorney McGraw so that Pilkilton could

make a new will, Appellees were present while Pilkilton and attorney McGraw discussed preparation

of the will, and Appellees were present and exerted control over Pilkilton during the execution of

—20—
the 2(X)? wilL (3) Appellces were involved in the “planning, preparation, and execution of various

estate planniiw documents concerning Pilkilton: (3) there were earlier wills in which Pilkilton left

his property “primarily to lAppellanisi, totally to the exclusion of lAppellces,1” which Appellants

assert was “[elvidence that the tcstator’s real desires were different from those expressed in the

120071 will”; and (5) Pilkilton “was easily persuaded or influenced to change the terms of his Will

to comply” with Appellees’ suggestions or the suggestions of “their agents acting in concert with

them” as shown hy attorney McGraw’s deposition testimony.

Appellants contend that Appellees “swept in on” Pilkilton within days after he suffered “a

serious brain injury that left him fully incapacitated” and, while Pilkilton was in this incapacitated

state, Appellees obtained the 2007 will and other “estate planning documents.” Appellants contend

that Appellees arranged for the attorney, used close friends as witnesses and a family member as

3 “sequestered the Testator br 12 hours,” and attempted to use McGraw’s sister as a medical
notary,

expert to establish Pilkilton’s capacity.
3 Appellants also argue that McGraw represented Appellees

individually, as reflected in a rule 11 agreement filed in the guardianship proceeding, and that he

“acted in consort with the jAppellantsj in unduly influencing the Decedent to change the

testamentary disposition of his estate by executing the Purported 2007 Will.”

Appellees’ Position

Appellees argue that the trial court correctly found that Appellees did not exert undue

influence over Pilkilton. Appellees state that “lilt is undisputed that there was evidence of a

fiduciary relationship between the Lestator and one Appellee” and that, if Appellees had the burden

The notary McKinstry was Appellee Cindy Smith’s sister; they shared the same mother. McKinstry was not related to Pilkilton,
3

Dr. Patricia Sharkey was McGraw’s sister. Sharkey testified as a witness for Appellees, but was not a retained expert.
4

—21—
 to establish a lack of undue iniluence, they “clearly met that burden.” Citing Spiliman. 587 S.W.2d

at 172, they contend that the presumption of undue influence—when a fiduciary relationship

exists—onl establishes the burden of producing evidence. Appellees contend “that the trial court

weighed the evidence presented by both sides, and that was all Appellants were entitled to.”

Appellees argue that they presented evidence that (1) Pilkilton “was not someone who could

be easily influenced”; (2) Pilkilton played dominoes often after his fall, which Appellees contend

demonstrated that he did not have “a weakness of mind”; (3) Pilkilton and Appellees had a good

relationship; (4) the 2007 will made a natural disposition of Pilkihon’s property; (5) Appellants’

actions caused Pilkilton to be angry and decide to draft a new will that did not leave property to

Appellants: (6) at Pilkiltori’s request, Cindy Smith arranged for McGraw to meet with Pilkilton for

assistance in recovering lost property, not to execute a will; (7) during Pilkilton’s meeting with

McGraw, Pilkilton initiated the idea of making another will; and (8) McGraw “isolated the decedent

while they discussed the Willi.]” Appellees contend that Pilkilton’s detailed conversation with

McGraw about whom he wanted to receive his property and what they should receive “is sufficient

evidence in itself to establish that this Will was the product of the testatorl’ Js wishes, and no one

else’s.” They also contend that, although Appellants raise “concerns about Mr. McGraw later

representing the Appellees in the guardianship proceedings, there was absolutely no evidence that

he was acting as Appellees’ agent in making the new Will.” In addition, Appellees argue that events

over the short time period between Pilkilton’s hospitalization after a fall on January 25, 2007 and

his execution of a power of attorney designating Smith to be his attorney in fact on February 7,2007,

and his execution of the 2007 will on February Ii, 2007 do not qualify as “an extended course of

dealings” that, as the supreme court stated in Rothermel, is usually involved in undue influence. See

Rothermel, 369 S.W.2d at 922.

—22—
 Discussion

There is evidence that it was Pilkilton’s idea to make the 2007 will and that Pilkilton talked

to McGraw about whom he wanted to receive his property. There is also evidence that Pilkilton

wanted to make a new will because he was angry with Appellants—who were the beneficiaries under

the 2006 will—for taking his property after his fall in late January 2007. The attorney, McGraw,

testified that Pilkilton “wanted to change the Will because he didn’t want jFred, Jr. and Rogerl to

get anything in the Will.” And Appellants’ expert Dr. Weiner—when asked how ‘the fact that the

testator was very hurt and angry with his earlier heirs I wouldi weigh in on your opinion of undue

influence”—stated that “[ijt would weigh in favor of due influence.”

Ruby Smith, who was a witness to Pilkilton’s execution of the will and his long-time

companion, testified that “Iylou didn’t influence J. B. on anything because he was very stubborn and

hard headed, and if he made up his mind about something that he was going to do, he did it, and

[Appellees] did not influence him one way or the other.” Likewise, Potts, who had known Pilkilton

for decades, testified that Pilkilton was “definitely” a man who made his own decisions and knew

what he wanted. The two witnesses to the will, the notary. and the lawyer all testified that he

appeared to know what he was doing and what he wanted.

Additionally, the evidence was that Appellee Smith arranged for Pilkilton to meet with

attorney McGraw for purposes of getting Pilkilton’s property back from Appellants. Smith checked

Pilkilton out of a nursing home for the day on February 11, 2007 and accompanied Pilkilton to

church, lunch with family members and friend Ruby Smith, and then to Pilkilton’s home where he

executed the 2007 will. Although Appellees were in the home when the will was executed, they both

testified that they were not in the room with Pilkilton when the will was executed. The record also

shows Pilkilton had a history of making new wills, and that he had disinherited Smith in a prior will.

—23—
 Although doctors and nurses noted Pilkilion’s confusion and disorientation in his hospital

records from the day of his fall in late January 2007 through the day tiller he executed the 2007 will

afl(l witnesses testified that he was conlused and not himself, the evidence also supported Appellees’

position that he was not unduly influenced, A finding of undue influence cannot be inferred 110111

Appellees’ opportunity to cxcii undue influence alone. RollIerinL’l, 369 S.W2d at 923. And there

was no evidence that Appellees’ influence was not only present but was in fact exerted with respect

to the making of the testament itself, Id. In this case, the judge as factfinder heard all of the

evidence, resolved conflicts in the evidence, and found against Appellants. See City of Keller, 168

S,W,3d at 820; White, 2012 WL 6191348, at *5, We conclude that the evidence is factually

sufficient to support the court’s finding. We resolve issue four against Appellants.

CoNcLusioN

We resolve Appellants’ four issues against them and affirm the judgment of the trial court.

I
ELIZABETH LANG- ERS’
JUS’JE

I 10246F.P05

—24—
 tuatrt uf iat
3iftI! Jutnrt nf exai at Oat1ai
JUDGMENT
IN THE MATTER OF THE ESTATE OF Appeal from the County Court at Law No, 1
J. B. PILKILTON. DECEASED of Grayson County, Texas, (Tr.CLN0. 2009
l166P),
No. 054 1M024&CV Opinion delivered by Justice LangMiers.
Justices O’Neill and FitzGerald
participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees Cynthia Marie Smith and Jeffery Allen Pilkilton
recover their costs of this appeal from appellants Catherine C. Pilkilton, Fred Pilkilton, Jr,, and
Roger Pilkilton.

Judgment entered February 6, 2013.

1
ZL// y5)i’
ELIZABlTH LANG MIERS /
J1J$TIC