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In re Estate of Danford

Court of Appeals of Texas, Fourteenth District

May 1, 2018

IN THE ESTATE OF ANNIE RUTH DANFORD, DECEASED

          On Appeal from the County Court at Law No. 2 & Probate Court Brazoria County, Texas Trial Court Cause No. PR36600

          Panel consists of Justices Christopher, Donovan, and Jewell.

          OPINION

          KEVIN JEWELL, JUSTICE

         In this probate case, Robert J. Stawarczik applied to probate the will of the deceased, Annie Ruth Danford. The decedent's nephews, Ervin Hunold, Jr., Michael Hunold, Steven Hunold, and Travis Hunold (collectively, the "Hunolds"), opposed the admission of Danford's will to probate and contested the validity of the will on the grounds that (1) Danford lacked testamentary capacity, and (2) Stawarczik, with whom the Hunolds alleged Danford had a fiduciary relationship, exerted undue influence on Danford. The parties filed cross-motions for summary judgment. The trial court granted Stawarczik's motion, admitted Danford's will to probate, and named Stawarczik the executor of the estate.

         On appeal, the Hunolds raise numerous challenges to the summary judgment admitting Danford's will to probate, including several complaints that fact issues preclude summary judgment on their claim of undue influence. Specifically, as is relevant to our disposition, the Hunolds challenge the summary judgment on the grounds that the trial court erred in concluding that (1) Danford possessed testamentary capacity when she executed the will and (2) Stawarczik did not unduly influence Danford to execute the will in question. We agree that fact issues made summary judgment on these issues improper, and we reverse and remand for further proceedings.

         Background

         Annie Ruth Danford signed a purported will and a self-proving affidavit on December 23, 2010 (the "2010 Will").[1] In the 2010 Will, Danford named Stawarczik the executor and sole beneficiary of her estate.[2] On that same date, Danford executed a general power of attorney in favor of Stawarczik. Both the self-proving affidavit and the power of attorney were witnessed and notarized by the same three people: Lorraine Jennings and Ysabel Hyman witnessed the will and the self-proving affidavit; Janice Martin notarized the affidavit and the power of attorney. Stawarczik brought Jennings, Hyman, and Martin to Danford's home to execute the documents. Jennings, Hyman, and Martin had never met Danford before taking part in the signing of the documents.

         Danford died on February 17, 2016. Stawarczik applied to probate the 2010 Will shortly after her death. The Hunolds filed an opposition to probate and a contest to the 2010 Will. The Hunolds asserted that the will was not valid because Danford lacked testamentary capacity on the date she signed it. Further, the Hunolds alleged that Stawarczik, who was in a fiduciary relationship with Danford by virtue of the general power of attorney, exerted undue influence over Danford, resulting in the creation of the 2010 Will that Danford would not have executed but for Stawarczik's influence. Ervin Hunold, Jr. also filed an application for temporary dependent administration of Danford's estate.

         In September 2016, Stawarczik filed a traditional motion for partial summary judgment and no-evidence motion for summary judgment. Stawarczik attached, inter alia, (a) a copy of the 2010 Will, (b) excerpts from his own deposition, (c) excerpts from the depositions of Jennings, Hymen, and Martin, and (d) Stawarczik's affidavit. In the portion of his motion asserting traditional grounds for summary judgment, he claimed that no issue of material fact prevented admission of the 2010 Will to probate. According to Stawarczik, because the will contained a proper self-proving affidavit, he presented a prima facie case on the issues of proper execution and testamentary capacity by introducing the 2010 Will into evidence. Stawarczik argued he was "entitled to the issuance of letters testamentary because the proof required for probate of the [2010] Will has been made, [he] is named as executor in the Will[, ] and [he] is not disqualified from receiving such letters." Stawarczik additionally asserted that the Hunolds had no "competent or credible evidence of one or more essential elements of their claims that [Danford] lacked testamentary capacity on December 23, 2010 and that the will was signed by [Danford] on December 23, 2010 as a result of undue influence exerted by [Stawarczik] over [Danford]." He concluded his motion by requesting the trial court to admit the 2010 Will to probate, appoint him as independent executor of Danford's estate to serve without bond, and deny the Hunolds' claims of (1) lack of testamentary capacity and (2) undue influence.

         The Hunolds filed a response to Stawarczik's summary judgment motion in October 2016. The Hunolds attached a copy of the general power of attorney, which took the form of a notarized document appointing Stawarczik as Danford's "agent (attorney-in-fact) to act for [Danford] in [a]ny lawful way with respect to all of the following powers except for a power that [she] has crossed out below." None of the powers were crossed out, and the document stated in all caps:

IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I WERE PERSONALLY PRESENT.

         The general power of attorney is dated December 23, 2010, the same day that Danford executed the 2010 Will. The power of attorney was filed in the official public records of Brazoria County on December 30, 2010.

         In their response, the Hunolds asserted that the power of attorney established a fiduciary relationship between Danford and Stawarczik as of December 23, 2010. Thus, the Hunolds argued, an inference of undue influence arose and the burden of proof shifted to Stawarczik to show that the 2010 Will was fair and equitable. The Hunolds also asserted that Stawarczik failed to establish that Danford possessed the requisite testamentary capacity when she executed the will. Specifically, the Hunolds asserted, "No persons present at the Will signing recalled anything being said about a Will actually being signed, or what property was owned, or which persons were being made beneficiaries and who was being excluded. No mention was made of it being a Will ceremony."

         The Hunolds filed their own combined traditional and no-evidence motion for summary judgment. In it, they claimed that they were entitled to summary judgment because "all elements of undue influence, lack of testamentary capacity[, ] and breach of fiduciary duty are demonstrated and met by competent summary judgment evidence attached hereto and referenced herein."

         The trial court heard the motions for summary judgment on October 31, 2016. On November 10, the court granted Stawarczik's motion and denied the Hunolds' motion, resulting in the admission of the 2010 Will to probate and Stawarczik's ...


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