Opinion filed November 2 , 20 2 3



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 2 2

- 00 0 35

- CV

__________
IN THE MATTER OF THE ESTATE OF ROBBIE CHRIS BRISTOW, DECEASED

On Appeal from the 259th District Court Jones County , Texas Trial Court Cause No. 025056

M E M O R A N D U M O P I N I O N
Robbie Chris Bristow (Decedent) executed two different will s in th e year prior
to his death. A ppellant , Rebecca Bristow , is Decedent’s wife

. Appellant filed this appeal challenging probate of the latter will per the trial court’s Order Probating Will and Authorizing Letters Testamentary. The will was submitted for probate following Decedent ’s death and Appellant contested the probate, claiming , as she does on appeal, that the will was invalid because (1) Decedent lacked testamentary capacity , and (2) Decedent was unduly influence d at the time the will was made. Appellant additionally claims on appe al that the trial court erred in its determination2 of proper venue and in finding that the will was valid. We affirm the order of the
trial court. Factual and Procedural History
D ecedent ’s first of two will s was signed on December 13, 2019, (December Will) and the second was signed on May 27, 2020 (May Will) . The May W ill was submitted for probate in August 2020. At the time of the drafting/signing of the May
W ill, Decedent was in the midst of a divorce proceeding with Appellant

. But a final divorce decree was not signed prior to Decedent ’s death. During their approximately
13

- year marriage, D ecedent and Appellant had a son, L.B

. L.B. was born into the marriage and was legally D ecedent’s son. 1 Decedent had two other children: a son

— who was disinherited in both wills and is not part of this lawsuit

— and a daughter , Tisha Westbrook , the Appellee in this case

. 2
After Appellant filed for divorce in January 2020, Decedent was moved to Tisha ’s home to live with her

. Decedent suffered from liver disease, diabetes, and

— sometime prior to the relevant events in the case

— had a lower

- leg amputation

. There was testimony that Decedent was dependent upon others for transportation
and other necessities related to his care

. At the time Decedent executed the May
Will , his attorney had no concerns about his mental capacities. Tisha, with whom
Decedent continued to live until his death, similarly testified that she had no concerns about his mental capacity on the day he signed the May Will.
Decedent died on August 5, 202 0 , and his May W ill was submitted for probate

two days later

. Appellant fi led a will contest one week later

. In October 202 1 , there

1 T here was a paternity question raised in the counterpetition for divorce, but no DNA test was done prior to his second will and Decedent ’s death.

2 Tisha is an adult and was adopted by her paternal grandparents at some point, making her Decedent ’s biologi cal daughter , but also legally his sister . She is referred to as his sister in the May W ill

. Tisha testified that she always referred to D ecedent as “dad .” We refer to her as the D ecedent’s daughter in this opinion.3 was a final hearing on the will contest. Three witnesses testified

. Two for the applicant : Decedent ’s attorney and Decedent’s daughter Tisha ; and one for the

contestant : Appellant , Decedent’s wife

. Following the hearing, the trial court
ordered the May Will probated. Appellant raises one issue for review on appeal : D ecedent’s will should not have been admitted into probate. Appellant claims that four arguments support her
sole issue. First, Decedent was unduly influenced; second, Decedent lacked testamentary capacity; third, evidence was improperly excluded by the t rial court; and fourth, venue was improper. We first address the fourth argument regarding venue, then the first and second arguments that relate to the validity of the will, then
the third a rgument as to evidence excluded by the trial court

. The Motion to Transfer Venue was not timely filed. Appellant argues that the proceedings should have been transferred from Jones County to Taylor County. A lthough Decedent lived with Tisha in Jones County in the months before he died , Appellant argues that he was still a resi dent of Taylor County at the time of his death . Under S ection 33.001 (a) of the Texas Estates Code, if the decedent had a domicile or fixed place of residence, venue for probate proceedings is i n the county where the decedent resided

. See T EX

. E ST

. C ODE A NN

. § 33.001 (a)(1) (West 2020 )

. I f the decedent did not have a domicile or fixed place of residence, venue for probate proceedings is in the county where the decedent’s principal estate was locate d at the time of death or th e county where the decedent
died. See i d. § 33.001 ( a)(2)(A)

. Appellant argued in the motion to transfer venue
that Decedent’s residence was in Taylor County at the time of his death and that filing for probate in Jones County was improper. T he probated will similarly states
that Decedent was a resident of Taylor County at the time it was created/signed on May 27, 2020. Tisha argues that Appellant failed to file the motion to transfer venue
i n a timely manner

.4 We agree that the motion to transfer venue was untimely. A motion to transfer
venue was filed approximately five months after the application to probate the will
was filed. Appellant filed a “Contest of a Will” on August 14, 2020. Th e motion to transfer venue was filed on January 4, 2021

— and denied by the trial court on
March 17, 2021.
Rule 86 of the Texas Rule s of Civil Procedure requires that a motion to transfer for venue purposes is waived if it is made after any written motion is
filed (other than a special appearance)

— this includes the original answer. See
T EX

. R. C IV

. P . 86(1). Appellant attempts to dist inguish filings in the county court

versus the district court , claiming that the motion to transfer venue was the first
substantive motion filed after the case was transferred to the district court

. 3 This

ar gument is unpersuasive. The venue rule makes n o distinction between county and
district courts when a case is transferred from one to the other

. See T EX

. R. C IV

. P

. 86. Therefore, when Appellant filed the will contest in the county court, that was
the first written motion filed in the case. The case did not become a new case once
it was transferred to the district court

— it was simply a continuation of the case that was originally filed in county court

. Th e record shows that Appellant did not file the motion to transfer venue concurrently or before she completed her first filing. Because the will contest was filed long before the motion to transfer venue was filed, Appellant failed to comply with the requi rements of Rule 86 and as a result, has waived any venue complaint.
See Estate of Ne u man , No. 09

- 13

- 00570

- CV , 2015 WL 2255563, at *2 (Tex. App.

— Beaumont May 14, 2015, no pet.) (mem. op.) ( where the motion to transfer venue was untimely, the appellate court held the movant waived his claim that the decedent’s domicile changed before his death ) ; see also Jarvis v. Field , 327 S.W.3d

3 A motion to substitute counsel was filed prior to the motion to transfer venue and after the case was transferred to the district court.5 918, 925 (Tex. App.

— Corpus Christi

– E dinburg 2010, no pet.) ( w here venue claims
were waived when no written objection on improper venue grounds was made to the county court

— but was first raised on appeal)

. Because Appellant untimely filed her motion to transfer venue, w e overrule Appellant’s fourth argument that venue was improper in Jones County

. Validity of the May Will Appellant argues that the May Will is not valid because there is evidence that
Decedent was unduly influenced by Tisha and that Decedent lacked testamentary capacity due to his illnesses. 4 Appe llant contends that Tisha unduly influenced Decedent to change his will because he was dependent upon her for care and transportation , and because she was present when the May Will was signed. Appellant also claims that it was unnatural for Decedent to bo th question the paternity of L.B. and to disinherit L.B. , particularly as he was still attempting to

contact his son for visitation after the May Will was executed

. Standard of Revie w When we review a trial court ’ s factual determinations, we apply the same standards of review that we use in reviewing the evidence in support of a jury ’ s findings. In re Doe , 19 S.W.3d 249, 253 (Tex. 2000) (“When the trial court acts primarily as a factfinder, appellate courts normally review its determinations under
the legal and factual sufficiency standards.” (citing Catalina v. Blasdel , 881 S.W.2d 295, 297 (Tex. 1994))); see also Burt v. Francis , 528 S.W.3d 549, 553 (Tex. App.

— Eastland 2016, no pet.). Under either standard, the trial judge is the sole judge of

4 In her brief filed before this court, Appellant first challenges the validity of the May Will due to “undue influence” exerted upo n testator , and then , Appellant challenges testamentary capacity. As a matter of law, undue influence implies the existence of testamentary capacity . Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963). Thus, a testator must first have testamentary capa city before they may be unduly influenced. While analytically it may make more sense to address testamentary capacity first, we will address the issues in the order presented for our review by Appellant.6 the cre dibility of witnesses and the weight to be given their testimony. See Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 761 (Tex. 2003); In re Estate of
Scott , 601 S.W.3d 77, 88 (Tex. App.

— El Paso 2020, no pet.). To analyze a legal sufficiency challenge, we must determine whether the evidence presented would enable reasonable and fair

- minded people to make the finding under review. City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005).
We review the evidence in the light most favorable to the finding, crediting any favorable evidence if a reasonable factfinder could and disregarding any contrary
evidence unless a reasonable factfinder could not. Id. at 821

– 22, 827. If conflicting
evidence can be resolved eit her way, we must presume the factfinder did so in favor of the prevailing party and disregard the conflicting evidence. Id. at 821. When an appellant challenges the legal sufficiency of the evidence supporting an adverse finding on an issue for which the appellant did not bear the burden of proof, we sustain that challenge “if our review of the evidence demonstrates a complete absence of a vital fact, or if the evidence offered is no more than a
scintilla.” Burbage v. Burbage , 447 S.W.3d 249, 259 (Tex. 20 14). “More than a
scintilla exists when the evidence would enable reasonable and fair

- minded people
to reach different conclusions.” Id. (citing Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004)). However, “if the evidence is so weak that it on ly creates a mere surmise or suspicion,” then that is legally equivalent to “no evidence.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc. , 434 S.W.3d 142, 156 (Tex. 2014). When, on the other hand, an appellant attacks the legal sufficienc y of an adverse finding on an issue for which the appellant bore the burden of proof, the appellant “must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis , 46 S.W.3 d 237, 241 (Tex. 2001).7 When reviewing a factual sufficiency challenge, we “must consider and weigh all of the evidence,” not just the evidence that supports the trial court ’ s finding. Mar. Overseas Corp. v. Ellis , 971 S.W.2d 402, 406

– 07 (Tex. 1998). We must review the evidence in a neutral light. Woods v. Kenner , 501 S.W.3d 185, 196 (Tex. App.

— Houston [1st Dist.] 2016, no pet.). When we set aside a judgment on the basis of factually insufficient evidence to sup port a vital finding, we must detail the evidence relevant to the issue and specify how the contrary evidence greatly outweighs the evidence in support of the finding. Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986). No such explanation is requir ed when we affirm a judgment.
Thomas v. Uzoka , 290 S.W.3d 437, 453 (Tex. App.

— Houston [14th Dist.] 2009, pet. denied) (citing Ellis , 971 S.W.2d at 407). When a party attacks the factual sufficiency of an adverse finding on an issue
for which it had the bu rden of proof, it must demonstrate on appeal “that the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem.
Co. , 46 S.W.3d at 242 (citing Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983)). When a party challenges t he factual sufficiency of the evidence supporting
a trial court ’ s finding on an issue for which it did not have the burden of proof, we will set aside the finding only if the evidence in support of the finding is so weak or the finding is so contrary to th e great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cowan v. Worrell , 638 S.W.3d 244, 253 (Tex. App.

— Eastland 2022, no pet.); see Pool , 715 S.W.2d at 635; In re Estate of Hemsley , 460 S.W.3d 629, 637 (Tex. App.

— E l Paso 2014, pet. denied). Applicable Law and Analysis
1. Undue i nfluence in execution of the May Will was not proven Undue influence implies the existence of a testamentary capacity subjected to and controlled by a dominant influence or power. Rothermel v. Duncan , 369 S.W.2d 917, 922 (Tex. 1963). To establish undue influence, the contestant must prove:8 (1) the existenc e and exertion of an influence (2) that subverted or overpowered the

testator ’ s mind when he executed the will, (3) such that he executed a will that he
would not have otherwise executed but for the influence. Id

. Not every influence
amounts to undue influence. Id. The presence of undue influence is usually subtle and may be proved by circumstantial evidence. Id. The circumstances relied on to establish undue influence must be of a reasonably satisfactory and c onvincing character, and they must not be equally consistent with the absence of such influence.
In re Kam , 484 S.W.3d 642, 652 (Tex. App.

— El Paso 2016, pet. denied). The burden of proving undue influence is upon the party contesting its execution.
Roth ermel , 369 S.W.2d at 922. It is, therefore, necessary for the contestant to introduce some tangible and satisfactory proof of the existence of each of the above
stated elements of undue influence. Id.
We consider ten non

- exhaustive factors when determini ng whether undue
influence exists. See Rothermel , 369 S.W.2d at 923. The first five factors concern whether the proponent exerted any influence over the testator, considering: (1) the nature and type of relationship between the testator, contestant, and prop onent; (2) the opportunities existing for the exertion of the type of influence or deception possessed or employed; (3) the circumstances surrounding the drafting and execution of the will; (4) the existence of a fraudulent motive; and (5) whether there has been habitual subjection of the testator to the control of another.
Id. The next four factors are used to determine whether the testator ’ s will was subverted or overpowered by any influence exerted by the proponent, considering: (6) the state of the testator ’ s min d at the time he executed the will;9 (7) the testator ’ s mental or physical incapacity to resist such influence or the susceptibility of the testator ’ s mind to the type and extent of influence exerted; (8) the words and acts of the testator; and (9) the testator ’ s weakness of mind and body, whether a result of age, disease, or otherwise.
Id. Finally, the tenth factor is relevant to determining whether the will would have been executed in the absence of the influence exerted by the proponent, considering: (10) whether th e will executed is unnatural in its disposition of the testator ’ s property. Id. Appellant, as the contestant of the May Will, had the burden of proving undue
influence. Id. at 922. No two suits alleging undue influence are the same. Id

. at
921. The outcome of each case depends on its own unique facts. See In re Estate of
Luce , No. 02

- 17

- 00097

- CV, 2018 WL 5993577, at *14 (Tex. App.

— Fort Worth Nov. 15, 2018, no pet.) (mem. op.). Th e distinction between evidence that is
sufficient to show undue influence and that which is merely suspicious defies articulation; it essentially is a matter of degree. Id

. (citing Boyer v. Pool , 280 S.W.2d 564, 566 (1955) )

. Appellant points to Estate of Russey as authority for the consideration of five possible facts , which can together support undue influence: (1) the need for money by the influencer; (2) the testator’s dependence on the
influence for care and trans portation ; (3) the influencer’s reinte rpretation of historical events in a negative light about testator’s children; (4) the influencer’s presence when the will was signed and the lack of presence of any family members; and (5) an unnatural disposition

— such as the disinheritance of a child. S ee Estate of Russey , No. 12

- 18

- 00079

- CV , 2019 WL 968421 , at *3 (Tex. App.

— Tyler Feb. 28, 2019, no pet.) (mem. op. ). Appellant claims that there is evidence of the same type facts from Russey , which support that Decedent was undu ly influence d when he executed the May Will

.10 Specifically, Appellant argues that D ecedent was dependent upon Tisha as his caretaker, that Tisha reinterpreted the relationship between L.B. and D ecedent to be negative, that Tisha was present when D ecedent signed the May Will, and that disinheriting L.B. and giving Tisha more in the May Wi ll than in the December Will provided an unnatural disposition. Appellant also claims that Tisha prevented
D ecedent from communicating with L.B. A ppellant further argues that a broken Rule 11 Agreement made by the parties in the divorce case

— that the Dec ember Will
would be in effect until the divorce was finalized

— is further evidence of undue influence exerted upon Decedent

. In addition, Appellant argues that , because the
December Will only included a small bequest to Tisha, the shift to her receiving
D ecedent’s entire estate in the May W ill was illustrative of Tisha’s influence. Appellant testified that the health ailments D ecedent suffered made him susceptible

to being influence d , wh ich in turn caus ed him to create the May Will.
Tisha testified that it was not unusual for D ecedent to disinherit a son, as he had another son whom he completely disinherit ed in both wills. Tisha also testified
that she became the caretaker for D ecedent after he came to live with her and that
she and D ecedent always had a close relationship

. Further, even Appellant testified
that D ecedent and Tisha were “very close

. . . they had a lot in common and were probably best friends.” Tisha and D eceden t’s attorney both testi fi ed that D ecedent lived with Tisha and was dependent on Tisha for his care and transportation, and that Tisha was present in the attorney’s office

— but not in the same room

— when the will was signed. Despite her presence in the attor ney’s office , Tisha maintained that she
never read one of D ecedent’s wills prior to his death, and that she never discussed
the wills with him. Tisha testified that she did not know D ecedent would leave “it
all” to her

. There was no evidence presented that Tisha had any need for money, and Tisha testified that she did not speak with D ecedent’s attorney about the will
before , during , or after the signing of the will.11 As to the legal sufficiency , Appellant needed to “ demo nstrate on appeal that
the evidence establishe [d] , as a matter of law, all vital facts in support of the issue.”
Dow Chem. Co , 46 S.W.3d at 241

. Appellant, as the contestant of the May Will, had the burden of proving undue influence. Rothermel , 369 S.W. 2d at 92 2

. Undue influence requires (1) the existence and exertion of an influence (2) that subverted or overpowered the testator ’ s mind when he executed the will, (3) such that he
executed a will that he would not have otherwise executed but for the influence. Id. As to the first requirement, that there be an existence and exertion of influence, there was only evidence related to two of the five factors : (1) the nature and type of relationship between the testator, contestant, and proponent and (2) the opportunities existing for the exertion of the type of influence or deception possessed or employed

. See id. at 923. Ultimately, Appellant failed to provide any evidence other than the opportunity for influence by a person in a caregiver role. However,
the existence of a caregiver relationship alone is not enough to establish undue
influence. See Neal v. Neal , No. 01

- 19

- 00427

- CV, 2021 WL 1031975, at * 9 (Tex. App.

— Houston [1 st Dist.] Mar. 18, 2021, no pet.) (mem. op.) ( opportunity alone is not enough to infer the exertion of undue influence ); see also Estate of Scott , 601 S.W.3d 77, 90 (Tex. App.

— El Paso 2020, no pet.) ( explaining that “the fact that an individual had the opportunity to influence the testator, such as by being the testator’s caregiver, is insufficient to establish undue influence ”). Indeed, “having an opportunity to exert such influence due to being in a position of caring for the person upon whom the influence is supposed to be exerted is equally consistent with the theory of innocence as it is with the theory of wrongdoing.” Rothermel , 369
S.W.2d at 923. There is likewise no evidence to support that this “opportunity” actually subverted or overpowered Decedent’s mind when he made the May Will. See id. at
922. There was testimony from Decedent’s attorney that Tisha was not present i n12 the discussions related to the May Will, or any discussions related to Decedent’s

estate. Further, both Tisha and Decedent’s attorney testified that

— despite any physical ailments

— Decedent appeared to be in his “right mind” at the time the May
W ill was e xecuted. There was likewise a hearing in the divorce proceeding approximately two weeks before the May Will was signed. No party

— including
D ecedent’s attorney, Appellant or her attorney

— raised any concerns about Decedent’s mental capacity at the time of the hearing. Appellant has failed to show that the evidence established the existence and
exertion of an undue influence as a matter of law

. H aving the burden of proof , Appellant was required to demonstrate on appeal “that the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem. Co. , 46 S.W.3d
at 242. As we have noted above, Appellant failed to demonstrate more than a mere opportunity for Appellee to exer t an influence over Decedent. Thus, the trial court
could not have found that there was undue influence. See Rothermel , 369 S.W.2d at 923; Neal , 2021 WL 1031975, at *9. The trial court ’s determination , as the finder of fact, that there was no undue infl uence is not against the great weight and preponderance of the evidence ; indeed, a finding that Tisha even exerted an undue
influence over Decedent

— absent any questions of whether Decedent succumbed to any such influence or whether the result was a will th at would not have existed but
for the influence

— has no support in the record. Further, Appellant failed to establish evidence to support the third element necessary for undue influence: that the resulting will would not have been executed
but for the influ ence. See Rothermel , 369 S.W.2d at 92 2. Decedent had raised concerns about the paternity of L.B. , who he disinherited by the May Will , but
Decedent had also , in this an d the previous wi ll , disinherited a nother child whose paternity was not question ed by the parties

. Appellant argues that Decedent loved
L.B. , and that the May W ill “provided an unnatural disposition” in regards to L.B.13 However, that alone does not indicate that disinheriting a child who does not live
with a decedent in the face of questioned paternity is unnatural or was unusual for
D ecedent. D ecedent moved in with Tisha after Appellant filed for divorce and during the midst of th ose legal proceedings, changed his will to dev ise his assets to the person with whom he was living at the time

. We canno t say that l oyalty and blood pater n ity are un due ba ses for a decedent to weigh in devising his assets

. A change of heirs alone , particularly where unresolved familial issues exist , does not provide evidence or support the notion that such a disposition was a product of undue
influence in light of all the facts

. The evidence is legally and factually sufficient to prove that the May Will was
executed without undue influence. As result, we overrule Appellant’s first argument
that the evidence was sufficient to demonstrate, notwithstanding the trial court’s finding , that D ecedent was unduly influenced in executing the May Will.
2. Lack of t estamentary c apacity is not shown Before a will is admitted to probate , the will proponent bears the burden of proving proper execut ion by a testator with testamentary capacity at the time of its
execution. Estate of Hogan , No. 11

- 20

- 00170

- CV, 2022 WL 2070331, at * 3 (Tex. App.

— Eastland June 9, 2022 , no pet.) (mem. op.). A self

- proving will is sufficient to establish a prima facie case. Id. ; see also E ST

. § 251.101 ( D efining self

- proved
as a will “ (1) to which a self

- proving affidavit subscribed and sworn to by the testator and witnesses is attached or annexed; or (2) that is simultaneous ly executed, attested,
and made self

- proved as provided by Section 2 51.1045” ). A prima facie case is one
that present s sufficient evidence as a matter of law to establish a given fact, such as proper execution and/or testamentary capacity, if it is not evidentia rily rebutted or
contradicted

. In re Lipsky , 460 S.W.3d 579, 590 (Tex. 2015). After a prima facie
case is established , the burden shifts to the contestant to negate testamentary capacity14 of the testator. Hogan , 2022 WL 2070331, at *3. The burden of persuasion always remains with the proponent of the will. Id.
A testator has testamentary capacity when the testator is able to understand
that he or she is making a will, the effect of making the will, and the general nature
and extent of his or her property. Estate of Luce , 2018 WL 5993577, at *8. The testator must also possess sufficient memory to know the elements of the business transacted and to form a reasonable judgment about them. Hogan , 2022 WL 2070331, at *3. The key inquiry i s whether the testator had testamentary capacity
at the time the will was executed. Id. This may be inferred from the testimony of lay and expert witnesses regarding the behavior and conduct of the testator prior or subsequent to the execution of the will. Neal , 2021 WL 1031975, at *4

. If there is
evidence of in competence

— and evidence such incompetence persisted or had the probability to persist at the time of the will’s making

— such evidence may also be used to demonstrate testamentary incapacity. Id. Appellant challenged the May Will before it was admitted to probate, placing the burden of proof on Tisha to prove that Decedent had testamentary capacity at the
time the will was executed. See Hogan , 2022 WL 2070331, at *3. Here, the May
Will was a self

- proving will because it was simultaneously executed as required by the guidelines set out in Section 251.1045(a)

. See E ST

. § § 251.101 , 251.1 045(a)

. As a result, the burden of production shifted to Appellant to show Decedent did not have testamentary capacity at the time the May Will was executed. See Hogan , 2022 WL 2070331, at *3

. The burden of persuasion remained with Tisha as the proponent of
the will. Id. Appellant attempted to satisfy the burden of production through her own testimony. Appellant argued to the trial court that D ecedent lacked testamentary capacity because he lacked the sufficient mental ability at the time the May Will was created. The evidence of testamentary incapacity Appellant cites is: (1) that15 D ecedent doub t ed that L.B. was his biological child; and (2) that Dece dent was chronically ill from diabetes and liver failure which caused him to have high
ammonia levels

. 5 Decedent signed the May Will on May 27, 2020 , and subsequently, in June 2020, during communication with L.B., Decedent told L.B.
that he loved him . Appellant testified that she does not know why D ecedent would have continued to attempt to contact L.B. if Decedent believed he was not L.B.’s father after he signed the May Will. Despite this testimony, evidence was also submitt ed that, as of April 20, 2020, Appellant had not spoken to Decedent since February 6, 2020. Appellant likewise did not remember Decedent attending a virtual hearing on May 13, 2020, even though Decedent’s attorney testified that Decedent attended the hear ing and there

were no concerns by any party as to his mental capacity and ability to participate in the hearing. The only testimony Appellant provided close to the time of the execution of the May Will was how Decedent appeared during a hearing on June 18 , 2020. Appellant stated that Decedent was not making sense and that he appeared
weak and not well groomed. Appellee cites the counterpetition in the divorce proceeding as evidence that
D ecedent did not lack testamentary capacity. The counterpetition was filed on March 24, 2020, denied that D ecedent was L.B.’s biological father , and requested genetic testing. This occurred approximately two months before the May Will was executed on May 27, 202 0. Further , in response to Appellant’s argument that Decedent did not have testamentary capacity because he disinherited his son ,

5 The significance of high ammonia levels is un clear from the trial record. At one point , Appellant testifie d that high ammonia levels could cause Decedent to be agitated, and at another point she testified that even if the ammonia levels were “high on paper,” if Decedent was coherent, no action to adjust his medication would be taken. Appellant stated that the ammonia levels were “ adjusted with medication per the doctor

. . . he told us how to adjust it. ” However, n o medical expert testimony or authoritative sources
were offered to support Appellant’s testimony as a lay witness regarding her perception of the physiologic al effect of the alleged ammonia level s

. Likewise, t here is no testimony regarding the level of Decedent’s alleged agitation during or close in time to the execution of the May Will.16 Appellee correctly points out that the May Will disinherited another biological child
of D ecedent , implying nothing inconsist ent in the disinheritance of L.B. as
Decedent ’s disputed child

. Accordingly, Appellant ’ s disinheritance of L.B. does not provide evidence of a lack of testamentary capacity. At the hearing , Appellee relied on testimony from D ecedent ’s attorney that Decedent knew what he was doing and personally requested a new will be drawn up. As to legal sufficiency, although the self

- proving will alone is not enough to meet this threshold, the details sur rounding the self

- proved will are significant. See Hogan , 2022 WL 2070331, at *3. Here, the May Will was prepared by Decedent’s attorney , witnessed by the attorney and a woman who worked in the building and commonly serves as a witness, and was properly notarized and authenticated

. Decedent’s attorney testified that he prepared the will according to the terms and conditions requested by Decedent, and that Decedent was given tim e to review the will prior to signing it. As Appellant provided no evidence showing otherwise, the May Will’s self

- proving execution is sufficient as a matter of law to establish that
the will was properly executed

— including that Decedent possessed the ne cessary testamentary capacity

. See Lipsky , 460 S.W.3d at 590. As such, we hold that the
evidence is legally sufficient to support the trial court’s finding that Decedent had testamentary capacity when he executed the May Will. When conducting a factual sufficiency review, we consider all the evidence in a neutral light. Dow Chem. Co. , 46 S.W.3d at 242

. Appellant was unable to provide some evidence to contradict or negate the existence of testamentary capacity. Appellant had l imited contact with Decedent in the months prior to the execution of the May Will and , aside from testimony that on June 18

— after the May Will was signed

— he appeared un kempt and weak, Appellant presented no testimony about his mental capacity at the time the will was executed

. See Hogan , 2022 WL 2070331, at *3

. Instead, the only testimony about Decedent’s mental capacity at the17 time the will was executed indicated that Decedent did know that he was executing a new will, and that he understood the im plications of such. Further, Decedent questioned the paternity of L.B. in March, nearly two months before the execution of a new will. There was a hearing for the divorce proceeding in May, approximately two weeks before the May Will was signed . At that hearing, no concerns were raised about Decedent’s ability to comprehend or participate in the proceeding. Moreover, Appellant discussed a video call between Decedent and L.B. on June 6, 2020. Appellant gave no testimony either way about Decedent’s menta l capacity or abilities during th e call on June 6. Accordingly, w e cannot say that the evidence supporting the trial court’s finding of testamentary capacity was contrary to the overwhelming weight of the evidence, nor s o contrary to be clearly wrong and manifestly unjust. W e hold that the evidence is factually sufficient to support the trial court’s finding that Decedent had testamentary capacity when the May Will was
executed. The evidence is legally and factually sufficient to affirm that Decedent possessed proper testamentary capacity when the May Will was executed. As result, we overrule Appellant’s second argument that Decedent lacked testamentary capacity at the time he executed the May Will. Claimed Error Regarding Excluded Evidence Not Preser ved Appellant argues on appeal that the trial court erred in excluding video and photo graphic evidence offered to rebut statements made about Decedent’s relationship with L.B. Following the trial court’s ruling to exclude th is evidence, Appellant did not make any offers of proof

. Appellee argues that this failure constitutes a waiver on appeal. We agree.

“ To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. ”
Bobbora v. Unitrin Ins. S e rvs

. , 255 S.W.3d 331, 334

– 35 (Tex. App.

— Dallas 2008,18 no pet.). The court on appeal may be able to discern from the record the nature of the evidence and the ruling of the trial court, but without an offer of proof, there can be no determination of harm. Id. at 335. The proponent of the excluded evidence must preserve the evidence in the record to complain on appeal that the exclusion

was error. Id. ; see T EX

. R. E VID . 103(a). Further, when no offer of proof is made, the party must introduce the excluded evidence in a bill of exception. Bobbora , 255
S.W.3d at 335. When the proponent of the evidence fails to demonstrate the substance of the excluded evidence, the complaint is waived on appeal. Id. Here, Appella nt ma de no adequate offer of proof

. Appellant t old the trial
court that the video shows an “interaction between a father and a son” and that the photographs show L.B. and Decedent interacting. Both statements provide no details about the evidence or descriptions that would allow a harm analysis to be properly completed. There is likewise no bill of exception in the record

. As a result, Appellant failed to demonstrate the substance of the excluded evidence, waiving this complaint for appellate review

. In any event, i f the complaint had not been waived, we conclude that the trial court did not abuse its discretion by excluding th is evidence because Appellant did not disclose it in discovery . We review a trial court’s decision to either admit or
exclude evidence under an abuse of discretion standard. In re J.P.B. , 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion when it acts without regard to any guiding rules or principles. Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238, 241

– 42 (Tex. 1985). We must uphold the trial court ’ s evidentiary ruling if there is any legitimate basis for it. Owens

– Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998).
Rule 193.6 of the Texas Rules of Civil Procedure states: A party who fails to make, amend, or supplement a discovery response, including a required disclosure, in a timely manner may not introduce in evidence the material or information that was not timely disclosed,19 or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplem ent the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
T EX

. R. C IV

. P. 193.6(a). Appellant attempted to introduce a video and photographs as rebuttal evidence. The evidence would purportedly have demonstrated the bond
between L.B. and Decedent. Appellee objected to the admission of these items of evidence because Appellan t did not identif y or produce them during discovery

. The
trial court sustained Appellee’s objections, indicating twice that Appellant could not attempt to create their entire case solely as rebuttal evidence to Tisha’s statements
that Decedent and L.B. di d not have a normal and loving father

- son relationship.
T he trial court did not abuse its discretion by excluding th is evidence . W e overrule Appellant’s third argument regarding excluded evidence

. This Court’s Ruling Having overruled all four argument s presented by Appellant, we overrule Appellant’s sole issue on appeal that the May Will should not have been entered into probate. We affirm the order of the trial court.

W. BRUCE WILLIAMS
JUSTICE

November 2 , 20 2 3
Panel consists of: Bailey , C.J., Trotter, J., and Williams, J.