On Appeal from the County Civil Court at Law No. 1 Fort Bend County, Texas Trial Court Cause No. 11-CPR-023801
Panel consists of Justices Christopher, Busby, and Brown.
Tracy Christopher Justice
In this will contest, appellant Sean McNiece, the sole surviving child of Barbara Chapman, contends that the trial court erred in granting summary judgment rejecting his claims that his mother lacked testamentary capacity and that she executed the will as the result of her sister's undue influence. We agree that Sean raised genuine issues of material fact on both of these issues. We accordingly reverse the summary judgment and remand the case for further proceedings.
I. Factual and Procedural Background
Because the appellant's arguments rely heavily on the chronology of events, we state the factual background of the case in the form of a timeline. Each of the decedent's relatives shares a last name with at least one other person in the case, so we have referred to each individual by his or her first name.
Barbara Chapman had a history of alcohol abuse, and was hospitalized for seizures in October 2009 and again in November 2009. In May 2010, she and her husband Sidney McNiece divorced. Barbara moved out of the marital home in August 2010, but for some unstated period of time, Sidney continued to visit her. She continued to send money to their only surviving child, Sean McNiece, until November 26, 2010.
In December 2010, Sean was arrested for bank robbery and is currently serving time in a federal penitentiary. Barbara was "very distraught" over his arrest.
On January 7, 2011, Barbara signed a statutory power of attorney appointing her sister Catherine Valby ("Cathy") as her attorney-in-fact. On January 25, 2011, Cathy called attorney Frank Holcomb and asked him to help Barbara with estate planning. Cathy told Holcomb, "'Barbara has been depressed and on medication; but she is competent. She really does not want to address these issues, but she needs to because her health is not good.'" Holcomb arranged with Cathy for him to meet with both Cathy and Barbara.
The first meeting with Holcomb took place on January 28, 2011. Holcomb was given a schedule of Barbara's assets, but he did not know who prepared it. He later stated, "Cathy played a fairly minor role in our discussions, letting Barbara answer questions and tell what she wanted to do." Holcomb stated that he attempted repeatedly to get Barbara to agree to allow him to create some form of a trust for Sean, but Barbara rejected the attorney's suggestions. Holcomb saw no evidence of alcoholism or drinking, nor were these subjects discussed.
After the documents were prepared, Holcomb sent them to both Barbara and Cathy. Cathy twice called with minor changes to the documents. Holcomb never spoke with Barbara outside of Cathy's presence. He sent the invoice for his work only to Cathy, and her husband Scott signed the check paying the attorney with funds from Scott and Cathy's joint checking account.
On February 17, 2011, Barbara and Cathy again went to Holcomb's office where Barbara executed the will. In the will, Barbara stated, "I have one son, SEAN GLEN PETER McNIECE, who I do not intend to inherit under this Will, nor do I intend for any of his issue to inherit. Instead, the primary beneficiary under this Will is my sister, BEVERLY G. CHAPMAN." At this meeting, Holcomb explained the documents briefly, but he does not recall if Barbara had any questions.
On March 3–16, 2011, Barbara was hospitalized in critical condition. In a medical note dated March 16, 2011, health-care personnel wrote that Barbara "[a]pparently drinks quite a bit more than she admits to." After this hospitalization, Barbara was considered terminally ill and received hospice care. She died on June 12, 2011.
Cathy applied to probate the will, and Sean filed his opposition to the probate of the will and to the issuance of letters testamentary. Cathy moved for traditional summary judgment on Sean's claim that Barbara lacked testamentary capacity and for no-evidence summary judgment on his claim that Cathy exercised undue influence over Barbara. The trial court granted both motions.
In two issues, Sean contends that the trial court erred in granting summary judgment because there are questions of fact about whether Barbara had testamentary capacity when she executed the ...