Opinion filed November 2, 2023

In The

Eleventh Court of Appeals __________

No. 11-22-00035-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 willsin the year prior 

to his death. Appellant, 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 influenced at the time the will was made.

Appellant additionally claims on appeal that the trial court erred in its determination 
2

of proper venue and in finding that the will was valid. We affirm the order of the 

trial court.

Factual and Procedural History

Decedent’s first of two wills was signed on December 13, 2019, (December 

Will) and the second was signed on May 27, 2020 (May Will). The May Will was 

submitted for probate in August 2020. At the time of the drafting/signing of the May 

Will, 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, Decedent and Appellant had a son, L.B. L.B. was born into the 

marriage and was legally Decedent’sson.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, 2020, and his May Will was submitted for probate

two days later. Appellant filed a will contest one week later. In October 2021, there 

1

There 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 biological daughter, but also legally his sister. She is referred to as his sister in the May Will.

Tisha testified that she always referred to Decedent as “dad.” We refer to her as the Decedent’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: Decedent’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 trial 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 argument 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. Although Decedent lived with Tisha in Jones 

County in the months before he died, Appellant argues that he was still a resident of 

Taylor County at the time of his death. Under Section 33.001(a) of the Texas Estates 

Code, if the decedent had a domicile or fixed place of residence, venue for probate 

proceedings is in the county where the decedent resided. See TEX. EST. CODE ANN. 

§ 33.001(a)(1) (West 2020). If 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 located at the time of death or the county where the decedent 

died. See id. § 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. The 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 

in 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. The 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 Rules 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

TEX. R. CIV. P. 86(1). Appellant attempts to distinguish 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 

argument is unpersuasive. The venue rule makes no distinction between county and 

district courts when a case is transferred from one to the other. See TEX. R. CIV. 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.

The 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 requirements of Rule 86 and as a result, has waived any venue complaint. 

See Estate of Neuman, 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–Edinburg 2010, no pet.) (where 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, we 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 Appellant 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 both 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 Review

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 upon 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 capacity 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 credibility 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 either 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. 2014). “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 only 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 sufficiency 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.3d 

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 support 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 required 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 burden 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 the 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 the 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.—El Paso 2014, pet. denied).

Applicable Law and Analysis

1. Undue influence 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 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. 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 convincing 

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. 

Rothermel, 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 determining 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 proponent;

(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 mind 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 the 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.). The 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 transportation; (3) the influencer’s reinterpretation 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. See 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 unduly influenced when he executed the May Will. 
10

Specifically, Appellant argues that Decedent was dependent upon Tisha as his 

caretaker, that Tisha reinterpreted the relationship between L.B. and Decedent to be 

negative, that Tisha was present when Decedent signed the May Will, and that 

disinheriting L.B. and giving Tisha more in the May Will than in the December Will 

provided an unnatural disposition. Appellant also claims that Tisha prevented 

Decedent from communicating with L.B. Appellant further argues that a broken 

Rule 11 Agreement made by the parties in the divorce case—that the December 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 

Decedent’s entire estate in the May Will was illustrative of Tisha’s influence. 

Appellant testified that the health ailments Decedent suffered made him susceptible 

to being influenced, which in turn caused him to create the May Will. 

Tisha testified that it was not unusual for Decedent to disinherit a son, as he 

had another son whom he completely disinherited in both wills. Tisha also testified 

that she became the caretaker for Decedent after he came to live with her and that 

she and Decedent always had a close relationship. Further, even Appellant testified 

that Decedent and Tisha were “very close . . . they had a lot in common and were 

probably best friends.” Tisha and Decedent’s attorney both testified that Decedent

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 attorney’s office, Tisha maintained that she 

never read one of Decedent’s wills prior to his death, and that she never discussed 

the wills with him. Tisha testified that she did not know Decedent 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 Decedent’s attorney about the will 

before, during, or after the signing of the will. 
11

As to the legal sufficiency, Appellant needed to “demonstrate 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 922. 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 [1st 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 in 
12

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 

Will was executed. There was likewise a hearing in the divorce proceeding 

approximately two weeks before the May Will was signed. No party—including 

Decedent’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. Having 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 exert 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 influence 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 that 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 influence. See Rothermel, 369 S.W.2d at 922. Decedent had raised 

concerns about the paternity of L.B., who he disinherited by the May Will, but 

Decedent had also, in this and the previous will, disinherited another child whose 

paternity was not questioned by the parties. Appellant argues that Decedent loved 

L.B., and that the May Will “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 

Decedent. Decedent moved in with Tisha after Appellant filed for divorce and 

during the midst of those legal proceedings, changed his will to devise his assets to 

the person with whom he was living at the time. We cannot say that loyalty and 

blood paternity are undue bases 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 Decedent was unduly influenced in executing the May Will.

2. Lack of testamentary capacity is not shown

Before a will is admitted to probate, the will proponent bears the burden of 

proving proper execution 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 EST. § 251.101 (Defining 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 simultaneously executed, attested, 

and made self-proved as provided by Section 251.1045”). A prima facie case is one

that presents sufficient evidence as a matter of law to establish a given fact, such as 

proper execution and/or testamentary capacity, if it is not evidentiarily 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 capacity 
14

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 is 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 incompetence—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 EST. §§ 251.101, 251.1045(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 Decedent 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) that 
15

Decedent doubted that L.B. was his biological child; and (2) that Decedent 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 Decedent 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 submitted 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 hearing 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 

Decedent did not lack testamentary capacity. The counterpetition was filed on 

March 24, 2020, denied that Decedent was L.B.’s biological father, and requested 

genetic testing. This occurred approximately two months before the May Will was 

executed on May 27, 2020. 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 unclear from the trial record. At one point, Appellant 

testified 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, no medical expert testimony or authoritative sources 

were offered to support Appellant’s testimony as a lay witness regarding her perception of the physiological

effect of the alleged ammonia levels. Likewise, there 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 Decedent, implying nothing inconsistent 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 Decedent’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 surrounding 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 time 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 necessary 

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 limited 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 unkempt 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 the 
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time the will was executed indicated that Decedent did know that he was executing 

a new will, and that he understood the implications 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 mental capacity or 

abilities during the call on June 6. Accordingly, we cannot say that the evidence 

supporting the trial court’s finding of testamentary capacity was contrary to the 

overwhelming weight of the evidence, nor so contrary to be clearly wrong and 

manifestly unjust. We 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 Preserved

Appellant argues on appeal that the trial court erred in excluding video and 

photographic evidence offered to rebut statements made about Decedent’s 

relationship with L.B. Following the trial court’s ruling to exclude this 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. Servs., 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 TEX. R. EVID. 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, Appellant made no adequate offer of proof. Appellant told 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, if the complaint had not been waived, we conclude that the trial 

court did not abuse its discretion by excluding this 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, 
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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 supplement 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. 

TEX. R. CIV. 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 Appellant did not identify 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. did not have a normal and loving father-son relationship. 

The trial court did not abuse its discretion by excluding this evidence. We overrule 

Appellant’s third argument regarding excluded evidence.

This Court’s Ruling

Having overruled all four arguments 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, 2023

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.