Stoll v. Henderson
| Decision Date | 26 February 2009 |
| Docket Number | No. 01-07-00733-CV.,01-07-00733-CV. |
| Citation | 285 S.W.3d 99 |
| Parties | Kathleen Marie Kasparik STOLL, Mary Frances Kasparik Evans, Leslie Loyce Kasparik Morris, and Gordon Morris, Appellants, v. Karen L. HENDERSON, Individually and as Independent Executrix of the Estate of Edward F. Kasparik, Deceased, Appellee. |
| Court | Texas Court of Appeals |
Vicki Whitlow Thomas, J. Ken Johnson II, Fleming & Associates, L.L.P., Houston, TX, for Appellants.
Nicole K. Sain, Ostrom/Sain, Jason B. Ostrom, Houston, TX for Appellee.
Panel consists of Justices TAFT, BLAND, and SHARP.
In two issues, appellants, Kathleen Marie Kasparik Stoll and Mary Frances Kasparik Evans, challenge the trial court's order rendering summary judgment in favor of appellee and upholding the earlier admission to probate of the 1993 will and codicil of decedent, Frances K. Marburger. In two separate issues, appellants, Leslie Loyce Kasparik Morris and Gordon Morris, challenge the trial court's denial of their application to probate decedent's 1994 will. We affirm.
This case concerns the disposition of the estate of Frances K. Marburger. Frances and Elmo Marburger were married. They had no children together, but Elmo had a son named James Marburger. Frances had two brothers, who were married, and several nieces and nephews. Her brothers were Leslie J. Kasparik and Edward F. Kasparik.
On November 5, 1993, Frances and Elmo executed reciprocal wills and established a family trust ("the Marburger Family Trust"). They transferred almost all of their assets to the trust, excepting certain personal property and items of a nonprobate, contractual disposition, such as individual retirement accounts and life insurance policies. James Marburger and Leslie J. Kasparik were initially named co-trustees of the Marburger Family Trust. After Leslie died around early 1994, Edward F. Kasparik succeeded him as co-trustee of the Marburger Family Trust.
Elmo died on January 3, 1994. By the terms of his will, the bulk of his estate transferred to the Marburger Family Trust. According to the terms of the trust agreement, the Marburger Family Trust was divided into two new trusts upon Elmo's death: the Frances K. Marburger Management Trust ("the Management Trust") and the Elmo G. Marburger Family By-Pass Trust ("the Bypass Trust"). On February 7, 1994, Frances transferred what was formerly her one-half of the community estate to the trust for administrative convenience.1
The trust agreement provided that, upon Frances's death, one-half of the Management Trust would be shared equally by eight named beneficiaries:
7. Frances Helen Kasparik, and
8. Mary Frances Kasparik [Evans].
Absent from this list of beneficiaries were Frances's niece and nephew, Karen L. Henderson, appellee, and Edward N. Kasparik, who were the children of Frances's brother, Edward F. Kasparik.
As to the other half of the Management Trust, Frances retained a special power of appointment to members of a defined class, which could be exercised during her lifetime or in her will.2 Karen L. Henderson and Edward N. Kasparik were members of the defined class.
After Elmo passed away, Karen and her father saw Frances two or three times a month at her home in Brenham. They would visit, spend the weekend, take Frances shopping and to the bank, and help with odd jobs. Karen testified that she loved her aunt, but she said that there were occasions when she thought "Aunt Frances" did not like her. Karen further testified that she knew that Frances did not always like Leslie Loyce Morris, Rose Kasparik, or James Marburger. In describing the family's dynamics, Karen said, "You don't know this family how they argue and fight...."
On June 8, 1994, Frances executed a codicil to her will, in which she included Edward N. and Karen. Karen and her father, Edward F., were with Frances at the time, having set up the meeting with the lawyer at Frances's request. In her codicil, Frances provided:
In a prior will of mine, dated January 28, 1983, I included as beneficiaries or contingent beneficiaries of my estate my nephew, EDWARD [N. KASPARIK]3, and my niece, KAREN KASPARIK HENDERSON. They were subsequently not included in a Codicil to that Will or in the Trust Agreement described above, and I wish each of them to receive an amount of property equal to that which each of the eight members of my family who is named in such Trust Agreement as a beneficiary upon my death shall receive, assuming each survives me. Therefore, I appoint to EDWARD [N. KASPARIK] and to KAREN KASPARIK HENDERSON, each an amount out of the property which I have the power to appoint equal in value to one-tenth (1/10) of the total amount to be distributed to members of my family (as described in Section 5.1(b) of Article V of such Trust Agreement) after my death.
Leslie Loyce Morris also visited her Aunt Frances. On July 21, 1994, Frances executed a new will, which was drafted by an attorney named Michael Dear and which all parties have referred to as the "Dear will." In this will, Frances revoked "all former Wills and Codicils made by me at any time heretofore," and she bequeathed everything to Leslie Loyce Morris and her husband, Gordon Morris. At trial, a letter from Michael Dear, dated August 8, 1994, was admitted, which stated that the original had been stolen. Dear advised Frances that "[i]f the original instruments were stolen, you will need to sign new original copies in order for them to be effective."
In November 1994, while Karen and her father were present, Frances wrote a note purporting to revoke the Dear Will:
Frances Marburger died on March 5, 2004. On May 3, 2004, the 1993 will and codicil were admitted to probate, on Karen's father's application. A copy of the Dear will and Michael Dear's affidavit appear in the clerk's record, file stamped March 17, 2006, but there is no indication of who filed this or for what purpose.
On July 12, 2006, James H. Marburger and Rose Kasparik, as co-trustees of the Management Trust, filed a declaratory judgment action.4 In this action, they sought guidance on how to distribute the Management Trust assets, questioning the effect of the Dear will and the subsequent handwritten revocation. In particular, the co-trustees were concerned about the distribution of the Management Trust assets that were subject to Frances's power of appointment.
On November 8, 2006, Kathleen Marie Kasparik Stoll and Mary Frances Kasparik Evans (appellants) filed an "application to set aside the probate of a prior will due to revocation by subsequent testamentary instrument...." Kathleen and Mary argued that the Dear will revoked all prior wills, and therefore Frances died intestate.
On January 12, 2007, Karen, her father, Kathleen, Mary, and the co-trustees agreed to the following stipulations, which were filed with the trial court.
1. The "Dear [w]ill" was executed with statutory requirements and due formalities of law and contained a revocation clause. The "Dear [w]ill" was revoked subsequent to its execution.
2. The "Dear [w]ill" is not being offered for probate....
3. The 1994 Codicil executed by Frances Marburger was delivered to Edward Kasparik as Trustee of the Frances K. Marburger Management Trust, created under the Elmo and Frances Marburger Family Trust.
4. The County Court at Law of Washington County, Texas has jurisdiction to consider and resolve the [pending] estate and trust matters. ...
Karen and her father moved for summary judgment. They argued that both the declaratory judgment action and Kathleen and Mary's application to probate the Dear will as an instrument of revocation were direct attacks on the trial court's order admitting the 1993 will and 1994 codicil to probate and were barred by the two-year statute of limitations applicable to will contests.
Kathleen and Mary filed a competing motion for summary judgment arguing that because the Dear will was executed after the 1993 will and 1994 codicil, any suit to admit it to probate would be subject to the four-year statute of limitations applicable to the admission of wills to probate, not the two-year limitations period for will contests. They also argued that the Dear will revoked the earlier will and codicil upon its execution, and no subsequent revocation of the Dear will could revive the 1993 will and codicil.
The trial court granted Karen's and her father's motion for summary judgment, denied Kathleen's and Mary's motion for summary judgment, and ordered the distribution of the Management Trust in accordance with certain percentages. The trial court found the following facts:
1. [T]he "Dear" will dated July 21, 1994 is not being offered as a valid will for probate but to contest the validity of the will dated November 5, 1993, and codicil dated June 8, 1994, which were admitted to probate on May 3, 2004.
2. [T]he first pleading constituting a suit to contest the validity of the will and codicil was not filed until November 8, 2006.
3. Probate Code Section 93 prevents the consideration of the "Dear" will to invalidate the will and codicil previously admitted to probate.
The trial court concluded that the 1993 will and the 1994 codicil were valid and that Frances had validly exercised her power of appointment in the codicil.
A month later, Leslie Loyce Morris and her husband, Gordon Morris, applied to probate the Dear will. Karen5 opposed this, based on the two-year statute of limitations and res judicata, arguing that the trustees' declaratory judgment action already addressed the Dear will.
The trial court held a bench trial on the application to...
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