Wilkinson v. Moore

• Decision Date: 28 May 1981
• Docket Number: No. 17986,17986
• Citation: 623 S.W.2d 662
• Parties: Tom H. WILKINSON, Appellant, v. Genevieve MOORE, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 662

623 S.W.2d 662

Tom H. WILKINSON, Appellant, v. Genevieve MOORE, Appellee.

No. 17986.

Court of Civil Appeals of Texas, Houston (1st Dist.).

May 28, 1981.

Rehearing Denied July 30, 1981.

Christian Jenkins, Corpus Christi, for appellant.

R. D. Cullen, Cullen, Carsner, Seerden & Williams, Victoria, for appellee.

Before EVANS, WARREN and DOYLE, JJ.

EVANS, Justice.

This is a will contest.

The testatrix, Corrine Carlyle Wilkinson, died in Goliad County on October 18, 1975, at 94 years of age. In her will, bearing date of July 28, 1971, she devised a life estate in an undivided one-half of her real property to a nephew, James New, and she devised the balance of her estate to her niece, Mrs. Genevieve Moore. This will contest was initiated by another nephew, Tom H. Wilkinson.

As grounds for his action to set aside the will, the contestant alleged both undue influence and lack of testamentary capacity. The will previously having been admitted to probate, it was the contestant's burden to establish these allegations by a preponderance of the evidence. Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (1941).

In response to special issues, the jury failed to find that Mrs. Wilkinson lacked testamentary capacity on July 28, 1971, the date she executed her will. Neither did the jury find that she had been induced to make the will by the exercise of undue influence upon her by Mrs. Moore. The contestant does not raise a point of error with respect to the issue of undue influence, but he does contend, in his fifth point of error, that the jury's failure to find that the testatrix lacked testamentary capacity is against the great weight and preponderance of the evidence. Although it was the contestant's burden to obtain a favorable fact-finding on this issue, his point of error requires that this court exercise its fact-finding jurisdiction to determine whether the jury's answer is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. Parrish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960); Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973).

In a will contest on the ground of testamentary incapacity, the issue is the condition of the testator's mind on the date the will was executed. Where proof is offered to show the testator's incompetency at other times, such evidence has probative effect only where it is demonstrated that the condition persists and "has some probability of being the same condition which obtained at the time" the will was executed. Lee v. Lee, 424 S.W.2d 609 (Tex.1968).

The testatrix possessed testamentary capacity if she understood she was making a will, knew the nature and extent of her property, knew the persons dependent upon her bounty and the persons to whom she meant to leave her estate, and knew how she meant to distribute her estate. She must have had a memory sufficient to collect in her mind the elements of the business to be transacted, and she must have been able to form a reasonable judgment as to the disposition of her estate. Bettis v. Bettis, 518 S.W.2d 396 (Tex.Civ.App.-Austin 1975, writ ref'd n.r.e.).

Mr. M. L. Null, an attorney in Goliad, was the draftsman of Ms. Wilkinson's will. He testified that Ms. Wilkinson called him at his office and requested that he come to her home to draw up a new will for her. At her home he had a long conversation with her during which her niece, Mrs. Moore, and a nurse were present. Ms. Wilkinson was at that time eighty-nine years old, and according to Mr. Null, she was very alert, clear-minded and had a clear voice. She knew who she was, who her family members were, and that she had never been married. She discussed her family, including her sisters and brothers, and their children by name. After that, they discussed her property, and she was aware of the acreage she owned, the nature of her business, her income, and who managed her property. She told Mr. Null that she wanted to leave her estate in equal portions to her niece, Mrs. Moore, and to her nephew, Mr. New, but she wanted Mr. New to have only a life estate in his share because she believed that this would result in a tax savings, and she did not want her nephew's third wife to inherit her estate. In her first conversation with Mr. Null she wanted to name in her will the beneficiaries who would eventually take her property under Mrs. Moore's will, but after a subsequent conversation with Mr. Null, she agreed not to try to impose that restriction on Mrs. Moore's power of disposition. Mr. Null drew up the will in accordance with her wishes. It devised to Mr. New a life estate in one-half of her real property and the remainder of her estate to Mrs. Moore and her heirs. In drafting this will, Mr. Null excluded the family home and its contents from the terms of the will because Ms. Wilkinson wanted to deed her home and its contents to Mrs. Moore to prevent Mr. New's wife from having the use of it.

When the will was ready to be executed, Ms. Wilkinson went to Mr. Null's law office. She was accompanied by her niece, Mrs. Moore, and a Mrs. Baker. Ms. Wilkinson first signed the deed to her house and a bill of sale covering its contents. Then, as Ms. Wilkinson read her will, Mr. Null diagrammed it for her. Ms. Wilkinson indicated satisfaction with her will as written and found that it conformed to the conversations she had with Mr. Null about it. She signed the will in his presence and in the presence of two other witnesses from his law firm, and then all three witnesses signed the will in the presence of each other. No one forced Ms. Wilkinson to sign the will.

Mr. Null testified that there was no question in his mind that when Ms. Wilkinson executed her will she knew what she was doing. He stated that she was cognizant of the effect of the will, knew the objects of her bounty, and the extent and disposition she was making of her property. She did not appear to be under the influence of drugs and did not appear to be frightened.

Ms. Wilkinson's personal physician, Dr. Tom B. Reagan, testified by deposition that he had examined her on the day prior to the date she executed her will. He saw her on that occasion because she complained of a sore throat and was having difficulty in swallowing. At that time she was in a good state of mind and mentally alert. She could read and her memory was sharp. Dr. Reagan had treated Ms. Wilkinson since about 1940 and continued to treat her up to the time of her death in 1975. She was always a very bright person, and her mental condition did not deteriorate until about six months prior to her death.

The proponent offered similar testimony from another attorney who had represented Ms. Wilkinson for some ten to fifteen years, and also from her accountant, and from her companion, nurses, and friends.

The contestant did not offer any contradictory evidence regarding Ms. Wilkinson's testamentary capacity on the day she talked with Mr. Null about drafting her will or...