Court of Appeals of Texas, Second District, Fort Worth
In the Estate of Wynell N. Klutts, Deceased
Appeal from the County Court Hood County, Texas Trial Court
Sudderth, C.J.; Gabriel and Wallach, JJ.
SUDDERTH, CHIEF JUSTICE
issues in this dueling-wills case, Appellants Jan Margaret
McKee, Donna Vick, and Paula Fuqua appeal the trial
court's summary judgment for their stepbrother, Appellee
Michael O. Kornegay. We reverse and remand.
Factual and Procedural Background
and Wynell Klutts married in 1959; Michael was Wynell's
son from a prior marriage, and Jan, Donna, and Paula were
Fred's daughters from a prior marriage. Fred died in
August 2007. Wynell died nine years later.
August 2007 and August 2016, Wynell executed four wills-two
in 2007, one in 2008, and one in 2010.
first two wills, Wynell devised everything equally to the
four children and appointed Michael and Jan as co-executors.
In 2007, she also appointed Michael and Jan as her agents
under a medical power of attorney and as attorneys in fact in
a durable general power of attorney instrument that required
them to act jointly or to agree in writing to exercise such
authority separately. And Wynell executed a "Declaration
of Guardian" that expressly disqualified Donna and Paula
from serving as her guardian in the event that she someday
needed one. From December 2007 to April 2008, Wynell
transferred assets worth over $6.4 million-approximately $1.6
million each-to Jan, Donna, Paula, and Michael.
executed a third will on July 24, 2008, in which she left
everything to Michael and Jan in equal shares and stated that
she had "deliberately made no provision herein for the
benefit of [her] stepdaughters Donna . . . and Paula . . .,
for good and sufficient reasons which [she did] not care to
enumerate herein." She appointed Michael as her
executor, with Jan to be her executor only if Michael
predeceased Wynell, resigned, or became legally incompetent
to act as executor.
two years later, in April 2010, Wynell executed a statutory
durable power of attorney appointing Michael as her sole
attorney in fact. Six months after that, in October 2010, she
executed another will, in which she devised 78% of a limited
partnership to Michael, the remaining 22% to Jan, and
everything else to Michael. In the 2010 will, she named
Michael as her executor and Donald L. Barley, who prepared
both the 2008 and 2010 wills, as the successor executor.
Wynell died in August 2016, Jan, Donna, and Paula sought to
admit the 2007 will to probate. Michael challenged it,
arguing that Wynell's 2008 and 2010 wills had revoked the
2007 will, and he sought to admit Wynell's 2010 will to
probate. In support of Jan as executor of
Wynell's estate, Donna and Paula raised two grounds:
undue influence by Michael and Wynell's lack of
testamentary capacity with regard to the 2008 and 2010
filed a traditional and no-evidence motion for partial
summary judgment. In the traditional portion of his motion,
he argued that the 2007 will was revoked by the 2008 and 2010
wills, both of which, he stated, were consistent with
Wynell's desires when made, affirmatively negating an
essential element of undue influence. In the no-evidence
portion of his motion, he argued that there was no evidence
to support each of the elements of undue influence with
regard to the 2008 and 2010 wills.
their response to Michael's motion, Jan, Donna, and Paula
reminded the trial court that based on Michael's
fiduciary relationship with his mother, he bore the burden of
proof to show the absence of undue influence with regard to
the 2008 and 2010 wills, preventing a no-evidence summary
judgment in his favor. They directed the trial court to
evidence that Michael had been Wynell's attorney in fact,
had taken over Wynell's financial affairs after Fred
died, and had drained what assets were left after various
distributions to all four children until-in 2016-Wynell had
less than $10, 000 in her estate; that when Wynell's
probate attorney had declined involvement in drafting the
2008 will, Michael had engaged Barley to do it; and that when
Wynell executed the 2008 will, she was taking large amounts
of medication on a daily basis and was ultimately diagnosed
with dementia and Alzheimer's, calling into question her
testamentary capacity to execute both the 2008 and 2010
trial court granted summary judgment for Michael on the
traditional ground with regard to the 2007 will's
revocation by the 2008 will and on the no-evidence ground
regarding undue influence. In its order, the trial court made
no ruling about which of the remaining wills would be
admitted to probate and referred to the 2008 will as
"the purported will dated July 24, 2008." The order
also contained a Mother Hubbard clause, stating that
"[a]ll relief sought by Michael Kornegay in his First
Amended Motion for Partial Summary Judgment filed June 5,
2018 not expressly granted herein is DENIED." The trial
court then signed an order severing the claims disposed of by
summary judgment into a new cause number.
their first and third issues, Jan, Donna, and Paula argue
that the trial court erred by granting the no-evidence
portion of Michael's motion because Michael was the party
with the burden of proof and by granting the traditional
portion of Michael's motion because he did not
conclusively prove that Wynell had testamentary capacity when
she executed the 2008 will.
Burden of Proof in No-Evidence Summary Judgment
regard to a no-evidence motion for summary judgment, after an
adequate time for discovery, the party without the burden
of proof may move for summary judgment on the ground
that no evidence supports an essential element of the
nonmovant's claim or defense. Tex.R.Civ.P. 166a(i);
see Burges v. Mosley, 304 S.W.3d 623, 628 (Tex.
App.-Tyler 2010, no pet.) (holding that because defendant had
burden of proof on affirmative defense, she could not
properly move for no-evidence summary judgment on that
ground); Reyes v. Saenz, 269 S.W.3d 675, 676-77
(Tex. App.-San Antonio 2008, no pet.) (op. on reh'g)
(holding that trial court erred by granting no-evidence
summary judgment to plaintiffs on their own claim); see
also Estate of Danford, 550 S.W.3d 275, 282 (Tex.
App.-Houston [14th Dist.] 2018, no pet.); Hon. David Hittner
& Lynne Liberato, Summary Judgments in Texas: State
& Federal Practice, 60 S. Tex. L. Rev. 1, 18 (2019)
("If a party has the burden of proof on claims or
defenses, it may not properly urge a no-evidence summary
judgment to challenge those claims or defenses."). In
their first issue, Jan, Donna, and Paula argue that because
Michael was an undisputed fiduciary, he bore the burden of
rebutting the presumption of unfairness, making improper the
trial court's grant of his no-evidence motion on undue
person challenging the validity of an instrument generally
bears the burden of proving the elements of undue influence
by a preponderance of the evidence. Quiroga v.
Mannelli, No. 01-09-00315-CV, 2011 WL 944399, at *5
(Tex. App.- Houston [1st Dist] Mar. 17, 2011, no pet.) (mem.
op.); see Rothermel, 369 S.W.2d at 922 ("The
burden of proving undue influence is upon the party
contesting [the will's] execution."). This general
rule applies to transfers from parent to child.
Quiroga, 2011 WL 944399, at *5. Such transfers,
standing alone, do not give rise to a presumption of undue
influence, leaving the burden with the party challenging the
transaction's validity. See id. This is because
"nothing is more common or natural than for a [parent]
to bestow gifts upon his [or her] children." Hager
v. Hager, 127 S.W.2d 234, 238 (Tex. App.-Eastland 1939,
no writ); see Beville v. Jones, 11 S.W. 1128, 1130
(Tex. 1889) (explaining that "[i]n the case of a gift
from a child to the parent [, ] undue influence may be
inferred from the relation itself; but never where the gift
is from the parent to the child, and no suspicion whatever
attaches to the latter," but adding that "there is
no doubt that upon proof of the actual exercise of undue
influence it may be set aside").
in cases involving fiduciary relationships, a presumption of
undue influence may arise, requiring the person receiving the
benefit to prove the fairness of the transaction. See
Danford, 550 S.W.3d at 281-82; Quiroga, 2011 WL
944399, at *5; Price v. Taliaferro, 254 S.W.2d 157,
163 (Tex. App.-Fort Worth 1952, writ refd n.r.e.) (noting
that when "the ground of . . . undue influence is
plead[ed], as in this case, against the devisee who occupies
a confidential or fiduciary relation to the maker of the
instrument, the burden rests on the devisee to show the
fairness of the transaction by appropriate evidence,"
but holding that no presumption of unfairness arises merely
from the fact that the deceased and devisee were siblings).
And "a power of attorney creates an agency relationship,
which is a fiduciary relationship as a matter of law."
Miller v. Lucas, No. 02-13-00298-CV, 2015 WL
2437887, at *4 (Tex. App.-Fort Worth 2015, pet. denied) (mem.
op.) (noting that a fiduciary owes his principal a high duty
of good faith, fair dealing, honest performance, and strict
accountability); see Bombardier Aerospace Corp. v. SPEP
Aircraft Holdings, LLC, 572 S.W.3d 213, 231 (Tex. 2019)
("An agreement creating a power of attorney creates a
fiduciary relationship."); Nat'l Plan
Adm'rs, Inc. v. Nat'l Health Ins. Co., 235
S.W.3d 695, 700 (Tex. 2007) (noting that an agency
relationship imposes certain fiduciary duties on the
parties); Johnson v. Brewer & Pritchard, P.C, 73
S.W.3d 193, 200 (Tex. 2002) ("Under the common law of
most jurisdictions, including Texas, agency is also a special
relationship that gives rise to a fiduciary duty.").
Thus, an attorney in fact, as a fiduciary, carries the burden
of proof to overcome the presumption of unfairness that
arises in self-dealing transactions. See Danford,
550 S.W.3d at 285; see also Tex. Bank & Tr. Co. v.
Moore, 595 S.W.2d 502, 509 (Tex. 1980) (stating that a
fiduciary relationship puts on a profiting fiduciary
"the burden of showing the fairness of the
transactions"); Healey v. Healey, 529 S.W.3d
124, 135 (Tex. App.-Tyler 2017, pet. denied) ("A
fiduciary may not use his position to self-deal.").
argued to the trial court, see infra n.14, and
argues on appeal that because Danford, a 2018
opinion, was decided after the effective date of the
amendment to Estates Code Section 751.101, it does not apply
here. However, the law in effect at the time Danford
was decided was the same law that was in effect in the
instant case, and the facts here are quite similar to those
present in Danford. In Danford, the
deceased executed a will naming Robert
Stawarczik as the executor and sole beneficiary
of her estate on the same day in 2010 that she executed a
general power of attorney in his favor. 550 S.W.3d at 278.
All of these documents were executed at the deceased's
home in front of witnesses whom Stawarczik had brought and
who had not previously met her. Id. Her nephews
opposed the will's admission to probate, arguing that she
had lacked testamentary capacity and that Stawarczik had
exercised undue influence over their aunt. Id. at
filed a traditional and no-evidence motion for summary
judgment, arguing in his no-evidence motion that there was no
evidence of the lack of testamentary capacity or undue
influence. Id. The nephews responded by attaching a
copy of the general power of attorney appointing Stawarczik
as their aunt's agent, id. at 279, and argued
that this evidence of a fiduciary relationship shifted the
burden of proving lack of undue influence to Stawarczik.
Id. at 285. The court agreed, holding that when the
nephews presented some evidence of a fiduciary
relationship-i.e., Stawarczik's appointment as
attorney-in-fact on the same day as the will's execution-
this raised a presumption of undue influence sufficient to
defeat Stawarczik's no-evidence motion.
Id. at 285-86.
contends that in Danford, the Fourteenth Court
improperly interpreted the unfairness presumption applicable
to a fiduciary in self-dealing transactions and relies on the
analysis of the Beaumont Court in Fielding v. Tullos
to contend that this a rebuttable presumption. No.
09-17-00203-CV, 2018 WL 4138971, at *7 (Tex. App.- Beaumont
Aug. 20, 2018, no pet.) (mem. op.). In Fielding, the
estate's independent administrator (the deceased's
niece) challenged the deceased's having changed the
beneficiary designation on his accounts to his caretaker,
complaining that a fiduciary relationship had existed between
the deceased and the caretaker that gave rise to a
presumption of undue influence. Id. at *1, *5. The
caretaker moved for summary judgment on undue
influence. Id. at *2-3. In her
response, the administrator pointed out that the caretaker
had signed one of the account agreements as "agent"
and that the deceased had executed a power of attorney for
his accounts naming the caretaker as his agent. Id.
the Beaumont court in Fielding did hold that the
presumption is a rebuttable presumption that is extinguished
with the offering of contrary evidence, not one that shifted
the ultimate burden of proof of unfairness, id. at
*7, none of the cases cited in Fielding regarding
this burden-shifting proposition involved undue influence in
a fiduciary self-dealing situation. See id. (citing
Hot Head, Inc. v. Safehouse Habitats (Scot.), Ltd.,
333 S.W.3d 719, 730 (Tex. App.-Houston [1st Dist.] 2010, pet.
denied) (involving trademark infringement); Long v.
Long, 234 S.W.3d 34, 37 (Tex. App.-El Paso 2003, pet.
denied) (involving the characterization of marital property
on divorce); All Am. Builders, Inc. v. All Am. Siding,
Inc., 991 S.W.2d 484, 489 (Tex. App.-Fort Worth 1999, no
pet.) (involving trademark infringement and citing Gen.
Motors Co. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1983)
(involving products liability)); Tex. Nat. Res.
Conservation Comm'n v. McDill, 914 S.W.2d 718, 724
(Tex. App.-Austin 1996, no writ) (involving an employment
dispute); Garza v. City of Mission, 684 S.W.2d 148,
152 (Tex. App.-Corpus Christi 1984, writ dism'd w.o.j.)
(involving employment termination)). Accordingly, we are
unpersuaded by Michael's argument.
contrary, Danford and case law from the supreme
court and other courts of appeals reflect that in situations
involving self-dealing in fiduciary or confidential
relationships, a presumption of unfairness arises that shifts
both the burden of production and the burden of persuasion to
the fiduciary seeking to uphold the transaction. See
Moore, 595 S.W.2d at 509; see also Stephens Cty.
Museum, Inc. v. Swenson, 517 S.W.2d 257, 260 (Tex. 1974)
(observing that when a fiduciary relationship existed between
sisters and their brother, who was operating under their
power of attorney and who was also a director of the museum
to which the sisters had made a contribution that they later
sought to set aside, "[u]nder such conditions, equity
indulges the presumption of unfairness and invalidity, and
requires proof at the hand of the party claiming validity and
benefits of the transaction that it is fair and
reasonable"); Archer v. Griffith, 390 S.W.2d
735, 740 (Tex. 1964) (noting that after respondent
"established that the conveyance was executed and
delivered during the existence of the attorney-client
relationship, the burden was on petitioner to show that his
acquisition of the interest conveyed by the deed was fair,
honest[, ] and equitable"); Int'l Bankers Life
Ins. Co. v. Holloway,368 S.W.2d 567, 576 (Tex. 1963)
("Contracts between a corporation and its officers and
directors are not void but are voidable for unfairness and
fraud with the burden upon the fiduciary of proving
fairness."); McAuley v. Flentge, No.
06-15-00051-CV, 2016 WL 3182667, at *7 (Tex. App.-Texarkana
June 8, 2016, pet. denied) (mem. op.) (citing
Swenson, 517 S.W.2d at 260; Archer, 390
S.W.2d at 740); Jorda ...