Court of Appeals of Texas, Fourth District, San Antonio
the County Court at Law, Kerr County, Texas Trial Court No.
CCL16-16 Honorable Susan Harris, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice
C. MARTINEZ, JUSTICE
an appeal from a trial court's order granting Michele
DeBellis's traditional motion for summary judgment in a
will contest. Anna Crosswhite contends the trial court erred
in granting DeBellis's traditional motion for summary
judgment because she raised genuine issues of material fact
regarding the testamentary capacity of the deceased, Ava
signed a purported will and a self-proving affidavit on
October 25, 2016 (the "October 25th Will").
Elizabeth Jesko, the attorney who drafted the will, and
Morgan Wayne Dale witnessed the October 25th Will and
self-proving affidavit. Jesko's assistant acted as
notary. The October 25th Will made bequests to Mahaffey's
three sisters, but excluded her fourth sister, Crosswhite.
The residue of Mahaffey's estate was left to DeBillis.
DeBillis was the great-niece of Mahaffey's late husband.
died nine days later on November 3, 2016 of pancreatic
cancer. Shortly thereafter, DeBillis applied to probate the
October 25th Will, and Crosswhite contested the will on the
ground that Mahaffey lacked testamentary capacity on the date
the October 25th Will was executed. In the event the October
25th Will was found to be invalid, Crosswhite sought to offer
for probate another will, also drafted by attorney Jesko,
that Mahaffey had purportedly executed on October 6, 2016
(the "October 6th Will"). In the October 6th Will,
the residue of Mahaffey's estate was left to Crosswhite.
The October 6th Will did not include a bequest to DeBillis.
filed a traditional motion for summary judgment asserting
that her summary judgment proof conclusively established
Mahaffey had testamentary capacity at the time the October
25th Will was executed. The trial court granted
DeBillis's traditional motion for summary judgment. On
appeal, Crosswhite contends her summary judgment evidence
raised genuine issues of material fact regarding
Mahaffey's testamentary capacity at the time the October
25th Will was executed.
summary judgment is reviewed de novo. Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003). In a traditional motion for summary
judgment, the movant "has the burden of showing that
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law." Nixon v.
Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.
1985). "If the movant produces evidence that
conclusively establishes its right to summary judgment, then
the burden of proof shifts to the nonmovant to present
evidence sufficient to raise a genuine issue of material
fact." In re Estate of Danford, 550 S.W.3d 275,
281 (Tex. App.- Houston [14th Dist.] 2018, no pet.) (citing
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995)). "In deciding whether there is a disputed
material fact issue precluding summary judgment, evidence
favorable to the non-movant will be taken as true," and
"[e]very reasonable inference must be indulged in favor
of the non-movant and any doubts resolved in its favor."
Nixon, 690 S.W.2d at 548-49.
testator must be of 'sound mind,' which means having
testamentary capacity at the time the testator executes the
will." In re Estate of O'Neil, No.
04-11-00586-CV, 2012 WL 3776490, at *6 (Tex. App.-San Antonio
Aug. 31, 2012, no pet.) (mem. op.). "The key inquiry is
whether the testator had testamentary capacity on the day the
will was executed[.]" In re Estate of Danford,
550 S.W.3d at 281. A testator has testamentary capacity at
the time of execution if she possesses sufficient mental
(1) understand the effect of making the will and the general
nature and extent of her property, (2) know the
testator's next of kin and the natural objects of her
bounty, and (3) have sufficient memory to assimilate the
elements of executing a will, to hold those elements long
enough to perceive their ...