In re Estate of Hemsley

• Decision Date: 12 November 2014
• Docket Number: No. 08–12–00368–CV.,08–12–00368–CV.
• Citation: 460 S.W.3d 629
• Parties: In the Matter of the ESTATE OF Sherman Alexander HEMSLEY, Deceased.
• Court: Texas Court of Appeals

460 S.W.3d 629

In the Matter of the ESTATE OF Sherman Alexander HEMSLEY, Deceased.

No. 08–12–00368–CV.

Court of Appeals of Texas, El Paso.

Nov. 12, 2014.

James D. Lucas, for Robert C. Thornton and Richard Thornton.

Alexander V. Neill, for Enchinton Bernal, Flora Isela.

Before McCLURE, C.J., RIVERA (not participating), and RODRIGUEZ, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Richard Thornton and Robert Thornton appeal an order of the probate court admitting the will of Sherman Alexander Hemsley to probate, authorizing issuance of letters testamentary to Flora Isela Enchinton Bernal, and determining that Bernal is the person entitled to make the disposition of Hemsley's remains.

PROCEDURAL AND FACTUAL BACKGROUND

Sherman Alexander Hemsley was a popular actor who is best known for his role as George Jefferson on the ground-breaking television shows “All in the Family” and “The Jeffersons” which ran from 1975 to 1985. Hemsley never married and had no children. He continued to work as an actor and entertainer until at least 2011. Bernal was Hemsley's business manager for the last twenty years and she described their relationship as that of business partners, best friends, and family. Hemsley and Bernal lived together in El Paso for the last sixteen years of his life. Hemsley considered El Paso to be his home and Bernal to be his family. After being diagnosed with an incurable lung cancer

, Hemsley executed a will on June 13, 2012 naming Bernal as the independent executrix and sole beneficiary of his estate. He died in El Paso on July 24, 2012 at the age of seventy-four.

Hemsley was born in 1938 in Philadelphia, Pennsylvania to Arsena Hemsley Chisholm. He was raised by his mother, aunt, and grandmother in a poor neighborhood. They later moved to New York. Hemsley told Bernal and stated during interviews given at various times during his life that he did not have a relationship with his father. Robert Thornton¹ testified during the probate proceedings that his grandfather, William Alexander Thornton, was a Methodist minister and married when he had an affair with Chisholm. Richard Thornton is the son of William Alexander Thornton. Richard testified that both his older brother and his father had told him that Hemsley was his brother. According to Richard, Hemsley took his mother's maiden name because it would have been “bad news” for Richard's father if Hemsley had taken Thornton as his last name. The probate court granted Richard's motion for genetic testing and the DNA test results established that he is Hemsley's half-brother. While Robert testified that he spoke with Hemsley frequently by telephone or email, Richard did not maintain contact with Hemsley either by phone or mail over the years. Bernal first met Robert and Richard in April 2011 when they attended a performance by Hemsley at a comedy club in Cherry Hill, New Jersey. Richard recalled that Hemsley introduced him to the audience as his brother, but Bernal maintained that Hemsley never told her that he had a brother and she was unaware until after Hemsley's death that Richard was his brother. Bernal knew some of Hemsley's relatives on his mother's side of the family but she recalled that Hemsley never discussed his father or any relatives on that side of the family. Hemsley told at least one friend that he did not have any family in Philadelphia.

Shortly after Hemsley's death, a dispute arose between the Thorntons and Bernal with respect to the disposition of Hemsley's remains. Bernal intended to bury Hemsley during a military funeral at Fort Bliss in accordance with his wishes. The medical examiner's office refused to release the remains to Bernal, however, and the medical examiner utilized Hemsley's cell phone in an effort to locate his next of kin. Someone from the medical examiner's office called Richard who told the caller he was Hemsley's brother. Based on that representation, the medical examiner's office released Hemsley's body to the Thorntons. The Thornton family made arrangements to have Hemsley's body taken to a funeral home in El Paso to have the remains prepared for transportation to Pennsylvania for burial at the Washington National Crossing Cemetery.

Bernal filed an application to probate the will and for issuance of letters testamentary one week after Hemsley's death. Richard contested Bernal's application on the ground that the signature on the will had not been made by Hemsley, or alternatively, Hemsley was not of sound mind when he made the will. The contest also included Richard's petition for a declaratory judgment in which he asked the probate court to declare that he has the right to determine the disposition of Hemsley's remains. In her answer, Bernal requested that the probate court release the remains to her.

Following a bench trial, the probate court entered an order resolving all of the issues. With respect to Richard's contest, the court found by a preponderance of the evidence that Hemsley had testamentary capacity to execute the will, he was not subject to any undue influence at the time the will was executed, and the signature on the will was that of Hemsley. Regarding Richard's petition for declaratory judgment, the probate court found that Bernal was the person entitled to dispose of Hemsley's remains under Section 711.002 of Texas Health and Safety Code. Significant to this issue, the probate court expressly determined that the DNA evidence presented by Richard was admissible only for the limited purpose of establishing a right to inherit pursuant to Sections 53B and 53C of the Texas Probate Code. The probate court admitted the will to probate, ordered that Bernal be appointed independent executor of Hemsley's estate, and ordered that letters testamentary issue. Finally, the court ordered that Bernal was the person entitled to make decisions about the disposition of Hemsley's remains pursuant to Section 711.002 of the Texas Health and Safety Code.

TESTAMENTARY CAPACITY

In Issues One and Two, the Thorntons challenge the legal and factual sufficiency of the evidence supporting the trial court's determination that Hemsley had testamentary capacity to execute the will. To have the right and power to make a last will and testament, a testator must be of sound mind. Tex.Estates Code Ann. § 251.001 (West 2014).² This means that the testator must have testamentary capacity at the time the will is executed. In re Neville, 67 S.W.3d 522, 524 (Tex.App.-Texarkana 2002, no pet.). When a contest is filed before the will is admitted to probate, the proponent of the will bears the burden of establishing that it was properly executed and that the testator had testamentary capacity. Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex.1983) ; In the Estate of Coleman, 360 S.W.3d 606, 610 (Tex.App.-El Paso 2011, no pet.).

The testamentary capacity requirement is satisfied upon proof the testator had sufficient mental ability to understand he is making a will, the effect of making a will, and the general nature and extent of his property. Long v. Long, 196 S.W.3d 460, 464 (Tex.App.-Dallas 2006, no pet.) ; In re Neville, 67 S.W.3d at 524. He must also know his next of kin and the natural objects of his bounty, the claims upon them, and 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. In re Estate of Blakes, 104 S.W.3d 333, 336 (Tex.App.-Dallas 2003, no pet.). 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. Evidence of the testator's state of mind at other times can be used to prove his state 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.

Legal Sufficiency

We will consider first the Thorntons' challenge to the legal sufficiency of the evidence supporting the probate court's finding that Hemsley had testamentary capacity when he executed the will. In an appeal from a bench trial, we review legal and factual sufficiency issues under the same standards that are applied to the review of a jury's verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). An appellate court will sustain a legal sufficiency or “no-evidence” challenge if the record shows: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005) ; Kohannim v. Katoli, 440 S.W.3d 798, 811 (Tex.App.-El Paso 2013, pet. denied). In conducting our review, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822 ; Kohannim, 440 S.W.3d at 811. We are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. Id. at 822. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to make the finding...