Court of Appeals of Texas, Fifth District, Dallas
IN THE ESTATE OF BEATRICE G. LOVELL, DECEASED
Appeal from the Collin County Probate Collin County, Texas
Trial Court Cause No. PB1-1461-2017
Justices Schenck, Osborne, and Reichek
L. REICHEK JUSTICE
Villarreal, the son of Beatrice G. Lovell, appeals the
probate court's final order adjudicating a document as a
community property survivorship agreement and ordering that
Lovell's husband, Jimmy Ray Lovell, take under that
agreement all of Beatrice's property at the time of her
death. We affirm.
and Jimmy Ray were married for forty-five years. During their
marriage, the couple printed a form "joint and mutual
will" from an internet website. The document contained
nine paragraphs. In paragraph IV, the couple stated their
mutual agreement to execute a joint and mutual will,
"leaving to the survivor all property, real and
personal, of the party first to die, and on the death of the
survivor," leave all of his or her property "to our
children equally, share and share alike." In paragraph
V, they stated their "desire" that the
"survivor of us shall have absolutely and in fee simple
all the property, real, personal, or mixed, which either or
both of us may own or have any interest in at the death of
the one of us first to die." Beatrice and Jimmy Ray both
signed the document but did not have it witnessed.
2016, Beatrice died. Jimmy Ray filed an application to
probate the joint and mutual will and for issuance of letters
testamentary. Mario, Beatrice's son from a prior
marriage, filed a will contest alleging, among other things,
that the will was not valid because it was not attested to by
witnesses as required by law. Jimmy Ray then filed an
application to adjudicate the document as a community
property survivorship agreement.
probate court conducted a bench trial and began by observing
that the document could not be "received as a will"
because it lacked necessary witness signatures. The question
was whether the instrument could be construed as a community
property survivorship agreement.
witnesses testified. Herbert Villarreal, another son of
Beatrice's, testified that he had seen his mother's
signature many times and the signature on the document was
hers. Jimmy Ray testified he and his wife executed a document
they thought was a will. When asked if it was his intention
"to give either one to the other all of your property
when the first one died," Jimmy Ray said it
Although he acknowledged he had never heard the term
"community property agreement," he said he and his
wife discussed "that if I die, she gets property or if
she dies, I'd get the property." But, Jimmy Ray said
he did not go to law school and it did not matter to him what
the document was called because its contents accomplished
what he and his wife were trying to achieve.
conclusion of the evidence, the probate court determined the
document constituted a community property survivorship
agreement and ordered, among other things, that Jimmy Ray
take under the agreement all of the property of Beatrice.
sole issue, Mario contends the trial court erred in finding
the invalid will was a community property survivorship
agreement. Specifically, he contends there could be no
"meeting of the minds" necessary to create such an
agreement under chapter 112 of the Texas Estates Code because
Jimmy Ray had never heard of such an agreement and because
Jimmy Ray and Beatrice intended to execute a will.
"community property survivorship agreement" means
an agreement between spouses creating a right of survivorship
in community property. Tex. Est. Code Ann. § 112.001.
Spouses may, at any time, agree between themselves that all
or part of their community property, then existing or to be
acquired, becomes the property of the surviving spouse on the
death of a spouse. Id. § 112.051. Such an
agreement must be in writing and signed by both spouses.
Id. § 112.052(a). A written agreement signed by
both spouses is sufficient to create a right of survivorship
in community property if it includes the phrases "with
right of survivorship," "will become the property
of the survivor," "will vest in and belong to the
surviving spouse," or "shall pass to the surviving
spouse." Id. § 112.052(b). Even if those
phrases are not used, however, a community property
survivorship agreement that otherwise meets the requirements
of chapter 112 is effective. Id. § 112.052(c).
A surviving spouse may apply to the court for an order
stating that a community property survivorship agreement
satisfies the requirement of chapter 112 and is effective to
create a right of survivorship in community property.
Id. § 112.101.
required by the statute, the document at issue here was in
writing and signed by both Jimmy Ray and Beatrice. In it,
both parties expressed their intent that on the death of one
of them, the other would have "absolutely and in fee
simple" all property which either or both owned or had
any interest in "at the death of the one of us to first
die." While that language does not utilize the exact
wording of the phrases set out in section 112.052(b), it
clearly creates a survivorship right in the couple's
community property ...