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Estate of Silverman

Court of Appeals of Texas, Fourteenth District

June 4, 2019

IN THE ESTATE OF SETH SILVERMAN, M.D., DECEASED

          On Appeal from the Probate Court No. 2 Harris County, Texas Trial Court Cause No. 458363

          Panel consists of Justices Christopher, Jewell, and Bourliot.

          OPINION

          Kevin Jewell, Justice.

         Appellant Karen Grenrood appeals the probate court's summary judgment denying a handwritten document admission to probate as the last will of Seth Warren Silverman, deceased. The probate court ruled that the document does not reflect any testamentary intent and does not transfer or dispose of any property. We hold, however, consistent with Supreme Court of Texas precedent, that the handwritten document can be testamentary in character because it appoints an executor. Further, we disagree with the probate court's legal conclusion that the document does not transfer or dispose of the testator's property because we conclude it is ambiguous on that issue. We reverse the judgment and remand the case for further proceedings consistent with this opinion.

         Background

         Seth Warren Silverman wrote the following on a piece of paper, entirely in his handwriting on October 26, 2015:

10/26/15
Karen Grenrood is my executor, administrator, [and] has all legal rights to my estate in the case of my untimely or timely death.
Very truly yours,
[signature]
Jerry VanDaveer [witness]
Karen Grenrood [witness]

         Silverman was a forensic psychiatrist. Grenrood was Silverman's office manager and served in that capacity since approximately January 2015. Silverman died on May 4, 2017. A month later, Grenrood applied to probate the handwritten document as an alleged holographic will and asked the court to appoint her as independent executrix.

         Brett Nathaniel Silverman and Gregg Joshua Silverman, the decedent's brothers, and Irma Lee Silverman, the decedent's mother (the "Contestants"), filed an opposition to probate and a contest to the alleged will. The Contestants asserted that the handwritten document was not a valid will because Silverman did not execute the instrument with the formalities required by law. Further, the Contestants alleged that Grenrood exerted undue influence over Silverman, and that Silverman would not have executed the document but for Grenrood's undue influence. The Contestants asked the court to deny the alleged will admission to probate, to deny Grenrood's application to be appointed independent executrix, and to distribute Silverman's estate to the Contestants under Texas intestacy law.

         The Contestants filed a motion for declaratory judgment, a traditional motion for summary judgment, and an amended traditional motion for summary judgment. The amended traditional motion for summary judgment is the relevant motion for our purposes. The Contestants claimed that no issue of material fact existed that the handwritten document does not convey property but at most merely appoints Grenrood as an executor. For that reason, the Contestants argued, the handwritten document lacks testamentary intent, is not a will, and should be denied admission to probate. The court granted the Contestants' amended motion for summary judgment and refused to admit the handwritten document to probate as a will, ruling that the handwritten document neither reflects testamentary intent nor transfers or disposes of Silverman's real or personal property.[1]

         After the probate court signed the summary judgment, the Contestants filed an application to determine heirship. In that filing, the Contestants asserted that Silverman was not married and had no children at the time of his death, and that the Contestants were entitled to their respective shares of Silverman's estate under intestacy law.[2] The probate court signed a judgment declaring that Silverman died intestate, that Irma Silverman has a one-half interest in Silverman's real and personal property, and that Gregg and Brett Silverman each have a one-fourth interest in Silverman's real and personal property.[3]

         Grenrood appeals the summary judgment and judgment of heirship.

         Motion to Dismiss

         Before we consider the merits of Grenrood's appeal, we must first address the Contestants' motion to dismiss because it implicates this court's appellate jurisdiction. See Gutierrez v. Stewart Title Co., 550 S.W.3d 304, 308 (Tex. App.- Houston [14th Dist.] 2018, no pet.). The Contestants moved to dismiss ...


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