Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 4, 2018
Appeal from the County Court at Law No. 2 Gregg County, Texas
Trial Court No. 2016-0243-E
Morriss, C.J., Moseley and Burgess, JJ.
K. BURGESS JUSTICE
Lee filed a petition contesting the probate of the second
codicil to the will of Lucy Elizabeth Lee. The trial court
dismissed Lee's petition based on lack of standing. We
affirm the trial court's judgment.
the death of Lucy Elizabeth Lee (Lucy) on July 14, 2016, the
trial court issued an order admitting three instruments to
probate: (1) Lucy's October 10, 2013, will (the Will),
(2) Lucy's March 30, 2015, first codicil to the will
(First Codicil) and (3) Lucy's July 6, 2016, second
codicil to the will (Second Codicil). In the Will, Lucy left
her residuary estate to the Lucy E. Lee Family Trust (the
Trust). Lucy's son, Jack O'Guinn (O'Guinn), was
named as the lifetime income beneficiary of the Trust and as
beneficiary of the Trust principal for medical expenses not
covered by insurance. The Trust's remainder beneficiaries
were Lucy's step-grandson, Lee, and Lucy's grandson,
Jack Lindsay O'Guinn (Jack).
The First Codicil
First Codicil kept O'Guinn as the lifetime income
beneficiary of the Trust. It also removed the restriction on
O'Guinn's access to the Trust principal for medical
expenses not covered by insurance. However, it removed Lee
and Jack as remainder beneficiaries. Instead, it substituted
Lucy's niece, Mary Elizabeth Whitten, or Whitten's
surviving issue, as the Trust's sole remainder
The Second Codicil
Second Codicil-which was signed eight days before Lucy's
death-Lucy eliminated the Trust altogether and left the
entirety of her estate to O'Guinn free and clear of the
Trust. The Second Codicil reads, "I hereby bequeath and
give to my son, Jack Robert O'Guinn, all of my personal
property, household goods, jewelry, stocks and bonds and all
of the money I have at Texas Bank and Trust and the Bank of
The Agreement Between Lee And Whitten
November 2016, Lee and Whitten entered into a written
agreement (the Agreement). Under the terms of the Agreement,
Lee agreed to contest the admission to probate of the Second
Codicil, and Whitten agreed to give Lee forty percent of
anything she recovered under the Will and First Codicil. The
Agreement also stated that it was being made in consideration
of the parties' mutual release and settlement of
any and all claims and causes of action between themselves or
claims and causes of action which can, have been or could
have been made in Cause No. 2016-0243E in the County Court at
Law No. 2 of Gregg County, Texas, or any other court of
competent jurisdiction that in any way relate to the probate
and non-probate assets of Lucy E. Lee and her
the execution of the Agreement, Lee filed the present action
contesting probate of the Second Codicil. In his petition,
Lee claimed, among other things, that the statutory
requirements for probating the Second Codicil had not been
satisfied. He also alleged that Lucy was
incapacitated and unduly influenced by O'Guinn at the
time the Second Codicil was executed. O'Guinn responded
to Lee's petition contesting probate of the Second
Codicil by filing a motion in limine to dismiss Lee's
petition. In his motion in limine, O'Guinn argued that
Lee does not have standing to contest the probate of the
raised two arguments challenging Lee's standing. First,
he argued that Lee is not an "interested person"
under Texas law. Second, O'Guinn argued that, because the
Trust is a spendthrift trust, and because the Agreement
constitutes an alienation of an interest in a spendthrift
trust, the Agreement is invalid as a matter of law. Lee
responded with his own motion in limine, claiming that
O'Guinn did not have standing to challenge the Agreement
because he was not a party to it. The trial court ultimately
agreed with O'Guinn and dismissed Lee's petition.
appeal, Lee maintains (1) that he was not required to contest
the First Codicil in order to have standing to contest the
Second Codicil because he was a beneficiary under the
original Will and, therefore, an interested person under
Texas law, (2) that O'Guinn does not have standing to
allege that the Agreement is invalid or unenforceable, and
(3) that, even if O'Guinn did have standing to challenge
the Agreement, the trial court erred in finding the Agreement
invalid because the Trust was not an active spendthrift
Standard of Review
is implicit in the concept of subject-matter jurisdiction.
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 444-45 (Tex. 1993). "The issue of standing
focuses on whether a party has a sufficient relationship with
the lawsuit so as to have a 'justiciable interest' in
its outcome . . . ." Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex. 2005). To have
standing, the plaintiff "must have suffered a
'concrete injury' and a 'real controversy'
must exist between the parties such that it can be resolved
by the court." In re Estate of Forister, 421
S.W.3d 175, 177 (Tex. App.-San Antonio 2013, pet. denied)
(quoting Heckman v. Williamson Cty., 369 S.W.3d 137,
154 (Tex. 2012)). A court must dismiss a claim if the
plaintiff lacks standing to assert it, and it must dismiss
the entire action for want of jurisdiction if the plaintiff
lacks standing to assert any of its claims. Heckman v.
Williamson Cty., 369 S.W.3d 137, 150-51 (Tex. 2012).
consider the trial court's order on a motion to dismiss
for lack of standing in the same manner as a plea to the
jurisdiction. Forister, 421 S.W.3d at 178. "If
the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the
plea to the jurisdiction, and the fact issue will be resolved
by the fact[-]finder." Tex. Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).
Conversely, "if the relevant evidence is undisputed or
fails to raise a fact [issue] on the jurisdictional issue,
the trial court rules on the plea to the jurisdiction as a
matter of law." Id. at 228. Whether a plaintiff
has standing is a legal question we review de novo. See
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.
1998). The facts here are undisputed.
Lee Does Not Have Standing to Contest Only the Second
Lee's interest as a remainder beneficiary was terminated
by the First Codicil, Lee would need to successfully
challenge both the Second and the First Codicils to recover
under the Will. In other words, even if Lee successfully
contests the Second Codicil, he will still not recover
anything from Lucy's Estate because the First Codicil
would still be in place and that Codicil removed him as a
remainder beneficiary. Yet, Lee did not challenge the First
Codicil.Consequently, the trial court ruled that
Lee did not have standing to contest only the Second Codicil.
Nevertheless, Lee asserts that he has standing to challenge
only the Second Codicil because he is an interested person in
the Will-as that term is defined by Texas law-and an
interested person has standing to contest any later will or
codicil. Thus, we must first address whether Lee is, in fact,
an "interested person" in the Will under Texas law.
Lee's Standing as a Former Remainder Beneficiary
Does Not Make Him An Interested Party
first points to Section 256.204 of the Texas Estates Code in
support of his argument. See Tex. Estates Code Ann.
§ 256.204(a) (West 2014). That statute provides:
After a will is admitted to probate, an interested person may
commence a suit to contest the validity thereof not later
than the second anniversary of the date the will was admitted
to probate, except that an interested person may commence a
suit to cancel a will for forgery or other fraud not later
than the second anniversary of the date the forgery or fraud
Id. Lee then asserts that the term "interested
person" is defined by statute as "an heir, devisee,
spouse, creditor, or any other having a property right in or
claim against an estate being administered." Tex.
Estates Code Ann. § 22.018(1) (West 2014). Finally, he
points to caselaw that holds, "A 'person interested
in the estate' is one who has a legally ascertained
pecuniary interest, real or prospective, absolute or
contingent, which will be impaired, benefitted, or in some
matter materially affected by the probate of the will."
Abbott v. Foy, 662 S.W.2d 629, 631 (Tex.
App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.).
asserts that he satisfies both definitions of an interested
person. First, he notes that he satisfies the statutory
definition because he is named as a devisee in the Will and
has "a property right in or claim against"
Lucy's estate. Tex. Estates Code Ann. § 22.018(1).
Then, he proposes two arguments that he claims satisfy the
caselaw definition, i.e., that he has a pecuniary interest in
the Will that "will be . . . materially affected by the
probate of the [Second Codicil]." Abbott, 662
S.W.2d at 631. First, he argues that, if the Agreement is
determined to be invalid, unenforceable, or breached, he
would have the right to file subsequent litigation to
challenge the First Codicil, and if that subsequent challenge
is successful, he would recover fifty percent of "what
remains after the termination of O'Guinn's $5.5
million dollar lifetime trust." Second, he argues that,
under the Agreement, he is entitled to recover a forty
percent share of what Whitten recovers if the Second Codicil
is invalidated, even if the First Codicil remains in force,
and that his forty percent interest under the Agreement will
be impaired if the Second Codicil remains in force.
Consequently, Lee argues that he has standing to contest the
Second Codicil. See Muse, Currie & Kohen v.
Drake, 535 S.W.2d 343, 344 (Tex. 1976) (per curiam)
(standing requires pecuniary interest which will be affected
by the probate or defeat of the will). Lee fails under both
Lee fails under the statutory definition because he does not
have "a property right or a claim against"
Lucy's estate. Tex. Estates Code Ann. § 22.018(1).
Rather, he has only a potential right or claim against her
estate. Specifically, even if Lee successfully challenges the
Second Codicil, he still would not recover anything from
Lucy's estate because his former remainder interest was
terminated by the First Codicil. Stated another way, even if
Lee gains all he seeks in this litigation, he would still be
unable to demand anything from the administrator of
Lucy's estate or the trustee of the Trust. To reach that
point, Lee would have to successfully challenge the First
Codicil as well. Thus, at best, Lee has "a [potential]
property right or claim against" Lucy's estate, but
he does not have an actual one against it. See id.
Lee fails under the caselaw definition because his alleged
pecuniary interest is too far removed from Lucy's estate.
Although Lee relies on Abbott and Muse to
support his arguments, those cases actually support the
Abbott, Foy filed an application to probate a will
executed by Abbott, which named Foy as the sole beneficiary.
Abbott, 662 S.W.2d at 630. Abbott's stepson
filed a will contest claiming that Abbott lacked testamentary
capacity when she executed the will. After Foy filed a motion
to dismiss, alleging that the stepson had no interest in the
estate, the stepson offered for probate Abbott's earlier
will and codicil, which named him as a beneficiary.
Id. at 630-31.
reversing the trial court's dismissal of the will contest
in Abbott, the court of appeals recognized that,
"[i]n showing an interest by reason of a prior will, it
is not necessary to develop facts necessary to entitle the
will to probate." Id. at 632 (citing
Hamilton v. Gregory, 482 S.W.2d 287 (Tex. Civ.
App.-Houston [1st Dist.] 1972, no writ)). The court went on
to say that, if the earlier "will is indeed the valid
last will of the testatrix, appellant, as beneficiary, has a
pecuniary interest in the estate. However, these matters need
not be proved in a preliminary ...