### IN THE TENTH COURT OF APPEALS No. 10 - 10 - 00189 - CV IN THE ESTATE OF FRA NKIE L. ROSS, DECEA SED

From the 220th District Court Hamilton County, Texas Trial Court No. CV - 09309
MEMORANDUM OPINION

In this will

- contest case, Appellant Emmett Weldon L uker filed an oppos ition to the probate of his sister Frankie L. Ross‖s May 22, 2009 will, which named Appellee Billy D. Wilson as independent executor and bequeathed her estate in equal shares to Wilson , her longtime companion and close friend , and to Don ald Ross, her brother

- in

law. 1 Luker asserted that Frankie lacked testamentary capacity to execute her will and that it was executed as a result of Wilson‖s and/or Donald‖s undue influence. 2 Because

1 Luker‖s opposition was filed after the trial court signed an order admitting the will to probate and appointed Wilson as executo r. In a companion appeal, Luker challenged the validity of that order. In re Estate of Ross, No. 10

- 09

- 00334

- CV (Tex. App.

— Waco Nov. 30 , 2011, no pet. h.). Our decision in that appeal affirms that order. See id.

2 The self

- proving affidavit accompanyi ng Frankie‖s will prima facie establishes her testamentary capacity, but the will remained subject to contest. See Urbanczyk v. Urbanczyk, 278 S.W.3d 829, 833 n.3 (Tex. App.

— Amarillo 2009, no pet.)

.Estate of Ross Page 2

L uker filed the will contest after the trial court admi tted the will to probate, he had the burden of proof on those issues. See In re Estate of Flores, 76 S.W.3d 624, 629 (Tex. App.

— Corpus Christi 2002, no pet.). Wilson filed a no

- evidence motion for summary judgment asserting that there is no evidence that Frankie lacked testamentary capacity or that her will was executed as a result of undue influence. He also filed a traditional motion for summary judgment asserting that his summary

– judgment evidence conclusively establishes that no genuine issue of mate rial fact exists on Luker‖s claims . The trial court granted Wilson‖s motions, and Luker appeals

. Luker‖s second issue asserts that the trial court erred in granting Wilson‖s summary -

judgment motions. We review a trial court‖s summary judgment de novo . Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). Once a no

evidence motion for summary judgment is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specif ied in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)

. The nonmovant must produce “summary judgment evidence raising a genuine issue of material fact.” T EX
. R. C IV
. P. 166a(i). A genuine issue of material fact exists if more th an a scintilla of evidence establishing the existence of the challenged element is produced. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reas onable and fair

- minded people to differ in their conclusions.” Id. On the other hand, the evidence amounts to no more than a scintilla if it is “so weak as to do no more than create a mere surmise orEstate of Ross Page 3

suspicion” of fact. Id. When determining if more tha n a scintilla of evidence has been produced, the evidence must be viewed in the light most favorable to the nonmovant. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Luker‖s summary

-

judgment evidence show s the following background: Frankie was eighty years old, and Moody Ross, her only husband, died in 1985. She had no children. On April 13, 2009, after having fallen twice and injuring her arms, Frankie

was hospitalized for weakness and shortness of breath. On April 23, she was discharged from the hospital and admitted to Hico Care Center, a nursing home, for rehabilitation. On May 22, around lunchtime, Frankie execute d her will in her nursing

home room . Cherry Pearcy, a paralegal for attorney Bill Oxford, brought the will to the nursing home for execution. Pearcy notarized the will, and the witnesses were Patricia Berna, a nursing

- home medication aide, and Brittney Schroen, a nurse ‖ s assistant. Later on May 22, around 6:00 p.m., Frankie was discovered on the floor, having fallen while trying to get out of bed. Berna drove Frankie to the emergency room, but she was released back to the nursing home. On May 23, the hospital called the nursing home to report that Frankie ‖s hip was broken, and she returned to the hospital that day by ambu lance for surgery. She died in the hospital on May 25.

A testator has testamentary capacity when he has sufficient mental ability to understand he is making a will, the effect of making a will, and the general nature and extent of his property. In re Est ate of Blakes, 104 S.W.3d 333, 336 (Tex. App.

— Dallas 2003, no pet.). He must also know his next of kin and the natural objects of his bounty, the claims upon them, and have sufficient memory to collect in his mind the elements of the business transacted a nd hold them long enough to form a reasonable judgment about them. Id.Estate of Ross Page 4 The pivotal issue is whether the testator had testamentary capacity on the day the will was executed. Id. However, evidence of the testator ‖ s state of mind at other times can be us ed to prove his state of mind on the day the will was executed provided the evidence demonstrates a condition affecting his testamentary capacity was persistent and likely was present at the time the will was executed. Id. Long v. Long, 196 S.W.3d 460, 4 64

- 65 (Tex. App.

— Dallas 2006, no pet.); see Croucher v. Croucher, 660 S.W.2d 55, 57 ( Tex. 1983) ( “ Evidence of incompetency at other times can be used to establish incompetency on the d ay the will was executed if it ― demonstrates that the condition persists and has some probability of being the same condition which

o btained at the time of the will‖ s making. ‖ ” ) (citing and quoting Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968)). C ourts have more recently stated the circumstantial

- evidence test as follows: Thus, to su ccessfully challenge a testator ‖ s mental capacity with circumstantial evidence from time periods other than the day on which the will was executed, the will contestants must establish (1) that the evidence offered indicates a lack of testamentary cap acity; (2) that the evidence is probative of the testator ‖ s capacity (or lack thereof) on the day the will was executed; and (3) that the evidence provided is of a satisfactory and convincing character, because probate will not be set aside on the basis of evidence that creates only a suspicion of mental incapacity. See Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.

— Fort Worth 1998, no pet.). In re Estate of Graham , 69 S.W.3d 598, 606 (Tex. App.

— Corpus Christi 2001, no pet.); see Lewis v. Lamb, No. 09

- 06

- 00 201

- CV , 2007 WL 2002901, at *2 (Tex. App.

— Beaumont Jul y 12, 2007, no pet.) (mem. op.) ; In re Estate of Price, No . 04

- 05

- 00438

- CV , 2006 WL 3725542,
at *3 (Tex. App.

— San Antonio Dec

. 20, 2006, pet. denied ) (mem. op.)

. Luker did not present any direct evide nce that Frankie lacked testamen tary capacity on May 22, 2009, so the questions are (1) whether Luker‖s evidence was theEstate of Ross Page 5

kind that would indicate lack of testamentary capacity ; (2) if so, was that evidence probative of Frankie‖s lack of testamentary capaci ty on May 22, 2009 ; and (3) whether the evidence provided is of a satisfactory and convincing character

. See Croucher, 660 S.W.2d at 57; Estate of Graham, 69 S.W.3d at 606. Luker first points to excerpts from Frankie‖s hospital records. He notes the

re cords show that she had cataracts , that Wilson signed a form for her to receive a flu shot , and that she was “ tired ” on April 22

. An April 20 entry descri bes Frankie as

“ forgetful, ” but the entire description is “alert & oriented but forgetful.” Luker al so points to notations of “depression” on January 10 and 11, 2009 (an earlier hospitalization) and April 13, 15, 16, and 22, but each of those notations are accompanied by notations of no “confusion/disor ientation, ” and a January 9 note describes her as “a lert” and “oriented.” On April 14, Frankie was described as “poorly motivated to move,” but she was also described as “lucid.” On three undated days, she was noted to be “coping poorly” and refused a bath on one of those days. None of t his evidence indi cate s lack of testamentary capacity. Moreover, the hospital records filed by Luker contain an April 13 physician‖s “history and physical” that describes her as “alert and well oriented ” and a n A pril 23 description of her as “lucid.” Luker next points to excerpts from Frankie‖s nursing

- home records . On April 27, she was described as “forgetful at times,” but she was also described as alert and “in good spirits.” On April 30 she wa s described as “slow to respond ” but again was also described as alert. A May 11 note states that Frankie did not want to get out of bed except for therapy, but two note s that day describe her as alert and oriented. The MayEstate of Ross Page 6

22 note states that she fell in her room when her walker flipped. None of this evidence indicates lack of testamentary capacity. Moreover, the nursing

- home records filed by Luker contain a fall

- risk assessment that scores Frankie as being alert and not being disoriented or having any intermittent confusion. An undated evaluation describes her as “alert/orie nted.” A note on the morning of May 22 (the day the will was executed and the day she later fell ) describes Frankie as “alert” and “able to make needs known,” and the note for the beginning of the 3:00 p.m. shift that day states that she is “alert, orient ed x3” and “able to make needs known.” Luker ‖s summary -

judgment evidence includes excerpts from the deposition of Brittney Schroen, the nursing home assistant who helped care for Frankie and witnessed the will‖s execution. Schroen said that the only relat ive Frankie ever mentioned was her deceased husband, but Schroen also said that she did “not really” talk to Frankie about her property and family. Schroen also testified that she did not see evidence of Frankie being forgetful and that Frankie seemed “pr etty coherent.” Luker also points to Shroen‖s testimony that Frankie would lie in bed moaning in pain, but Schroen said that this happened “toward the beginning” two or three times a week and that pain medication would calm down the pain but “it never aff ected her mental status.” None of Schroen‖s testimony indicates lack of testamentary capacity. Furthermore, Schroen testified about how Frankie and Cherry Pearcy asked her and Patricia Berna to come to Frankie‖s room to be witnesses to Frankie‖s executio n of her will. Frankie told her she had read the will, and Schroen observed her looking it over and initialing every page and then signing it on the two pages that Schroen thereafterEstate of Ross Page 7

signed as a witness. Luker also points to excerpts from the d eposition o f Berna, the nursing

- home medication aide who also helped care for Frankie and witnessed the will‖s execution. Berna said that pain and pain medication can make a person confused , that Frankie was in pain (from her arm) , and that she gave Frankie pain med ication (Vicodin), but Berna did not say that Frankie was in fact confused because of pain or pain medication or that she was confused from pain or pain medication when the will was executed

. See Long, 196 S.W.3d at 466 ( testator‖s medical records showed isolated instances of medicated confusion, but nothing showed this continued to time will was executed)

. None of Berna‖s testimony indicates lack of testamentary capacity. Furthermore, Berna testified about how Pearcy asked her and Schroen to witness Fra nkie‖s will. Berna observed Pearcy handing Frankie the will and Frankie reading over and signing each page. After Pearcy read out loud the self

- proving affidavit, Frankie said that the will was what she wanted, and then Berna and Schroen signed the will in two places. On the issue of testamentary capacity, Luker finally points to excerpts from Pearcy‖s deposition. Pearcy said that on May 18 , Wilson left her a telephone message ask ing her to come to the nursing home and see Frankie. She also received a c all that day from the nursing home administrator to come and see Frankie. The next day, Wilson came by Pearcy‖s office and again told her that Frankie wanted Pearcy to see her at the nursing home. Pearcy visited Frankie around 10:00 a.m. on May 20; no one else was present. Frankie told Pearcy that she wanted to change her will. Pearcy reminded Frankie thatEstate of Ross Page 8

she already had a will, but Frankie said that she wanted to change her will from twenty

three beneficiaries to two and to leave everything to Billy Wi lson and Don Ross. Pearcy had found Frankie‖s existing will on her computer and had printed a copy, and she reminded Frankie that her existing will had twenty

- three beneficiaries and wanted to make sure that this was exactly what Frankie wanted to do

. 3 F rankie told her again that she wanted to change it to Wilson and Don ; t hey were the people in her life who came to see her, who cared for her, and who she wanted to be the beneficiaries of her estate. Pearcy and Frankie visited for th irty to forty

- five mi nutes ; they also discussed her health, her situation, her being released from the nursing home soon and getting to go home , and church. After leaving, Pearcy informed attorney Bill Oxford, her employer, about what had gone on, and he directed her to prepar e a draft of the will. Oxford reviewed the draft and corrected a few minor mistakes. Pearcy returned to the nursing home around 10:30 a.m. on May 22 to have Frankie execute the will. She and Frankie first read over the will page by page to “make sure it was right,” which took around twenty minut es. Pearcy then left the room to find two witnesses and returned with Berna and Schroen. Next, Pearcy explained that Frankie was going to execute her will, and she had Frankie initial each page. Pearcy then ask ed Frankie if she knew what the w ill said , and Frankie said that she did. Pearcy next asked her if anyone had encouraged her or coerced her to do this will, and she replied, “no, absolutely not.” Pearcy then swore Frankie and the

3 Luker‖s summary

-

judgment evidence includes Frankie‖s 2 004 will. Of the twenty

- three named beneficiaries, the first one listed is Wilson. The remaining beneficiaries were all relatives and included Luker and Don Ross.Estate of Ross Page 9

witnesses, and they all signed the will and the self

- proving affidavit. Luker asserts that Pearcy‖s deposition testimony reflects that , in her meeting with Frankie on May 20, Pearcy did not discuss with Frankie whether anyone was being “written out of the will” and that Pearcy di d not discuss Frankie‖s relatives with her

. That assertion is partially inaccurate. A s set forth above, Pearcy testified that she discussed with Frankie that her 2004 will had twenty

- three beneficiaries , but Frankie now wanted to leave her est ate to only two of them

— Wilson and Don Ross ( who was a relative )

. Thus, Pearcy did discuss with Frankie her desire to “write out of the will” twenty

- one relatives, and Frankie explained why she wanted to do that. That Pearcy did not specifically discuss with Franki e each relative being “written out of the will” is
not indicative of a lack of testamentary capacity. Luker also asserts that Pearcy did not ask Frankie about her knowledge of her property, but the deposition excerpts filed by Luker reflect that Pearcy wa s not questioned about whether she asked Frankie about her knowledge of her own property. In conclusion, none of Luker‖s summary

- judgment evidence indicates a lack of testamentary capacity and th us does not rais e a ge nuine issue of material fact on Frankie ‖s lack of testamentary capacity . T he trial court properly granted Wilson‖s no

evidence motion for summary judgment on that ground. Wilson also moved for summary judgment on the ground that there is no evidence that Frankie‖s will was executed as a resu lt of undue influence and that there is no evidence on the three elements of undue influence. A person of sound mind has the right to dispose of his or her property in the manner he or she wishes. Rothermel v.Estate of Ross Page 10

Duncan , 369 S.W.2d 917, 923 (Tex. 1963). To establish undue influence, a party must show: (1) the existence and exertion of influence; (2) the effective operation of an influence so as to subvert the will or overpower the mind of the grantor at the time of the execution; and (3) the execution of a n instrument the maker would not have executed but for such influence. Id. at 922 . There must be some evidence to show that the influence was not only present, but was exerted with respect to making the instrument. Id. ; Cotten v. Cotten , 169 S.W.3d 824, 827 (Tex. App.

— Dallas 2005, pet. denied). But, the exertion of undue influence cannot be i nferred by opportunity alone. Cotton, 169 S.W.3d at 827. Undue influence may be prove d by circumstantial, as well as direct, evidence. See Rothermel , 369 S.W.2d a t 922

. “ Although a contestant may prove undue influence by circumstantial evidence, the evidence must be probative of the issue and not merely create a surmise or suspicion that such influence existed at the time the will was executed.” Estate of Graham, 69 S.W.3d at 610 (citing Rothermel, 369 S.W.2d at 922 ). Luker cites excerpts from the depositions of Oxford , Wilson, and Don Ross as some evidence of undue influence by Wilson and Don Ross. Oxford testified that Pearcy called him to tell him that Franki e was in a nursing home and wanted to change her will from twenty

- three beneficiaries to only Wilson and Don Ross because they were the only two who visited her and cared about her. Oxford was concerned that Frankie was elderly, in a nursing home, and wan ted to change her will, so he questioned Pearcy about Frankie‖s state of mind and her reason for changing her will. Pearcy told him that Frankie ‖s state of mind was fine and she knew what she was doing,Estate of Ross Page 11

that she was about to be released from the nursing h ome, and that she was adamant about changing her will because only Wilson and Don Ross visited her and cared about her

. Oxford never communicated with Frankie for either will and did not know the size of her estate , but he recalled her 2004 will ( and its twenty

- three beneficiaries ) that Pearcy had prepared under his supervision; he relied on Pearcy‖s leng thy relationship with Frankie. Don Ross testified that he visited Frankie every day in the nursing home

. Wilson testified that he visited Frankie in the nursing home normally about three times a day. Frankie asked him to call Pearcy to come to the nursing home to see Frankie because she wanted to change her will. Wilson was familiar with Frankie‖s 2004 will because he

was named as executor and had a pow er of attorney for Frankie , and she had given him a copy of both instruments. The evidence that Wilson and Don Ross visited Frankie every day in the nursing home , and that Frankie changed her will to leave her estate to only Wilson and Don Ross because th ey were the only ones to visit and care for her , is no evidence of the existence and exertion of influence by either of them

. See Rothermel, 369 S.W.2d at 923 (“ The establishment of the circumstances of 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.”). T he exertion of undue influence cannot be i nferred by opportunity alone. Cotton, 169 S.W.3d at 827 ; see Rothermel, 369 S.W.2d at 923 (“ It is the law in Texas that a will cannot be set aside on proof of facts which at the most do noEstate of Ross Page 12

more than show an oppor tunity to exercise influence.”)

. This evidence amounts to no

mor e than a scintilla because it is “so weak as to do no more than create a mere surmise or suspicion” of fact. King Ranch, 118 S.W.3d at 751

. Luker also asserts that Wilson‖s motive to undu ly influence Frankie can be inferred from the circumstantial eviden ce of Wilson‖s transfer of estate assets to himself and to Don Ross after Wilson was appointed independent executor 4 and Wilson‖s omission of $130,000 in assets from the original inventory, appraisement and list of claims. 5 Wilson testified that, in trans ferring the assets, he was just executing the will according to his attorney‖s advice. One of the factors to be considered when determining whether undue influence exists in a particular case is “the existence of a fraudulent motive.” Estate of Graham, 69 S.W.3d at 609 (citing Rothermel, 369 S.W.2d at 923). We assume without deciding that this subsequent conduct by Wilson as executor is circumstantial evidence of a fraudulent motive, but Luker‖s circumstantial evidence amounts to no evidence under the equ al

- inference rule. If the evidence permits two inferences, equally consistent with two facts, neither fact may be inferred. City of Keller v. Wilson , 168 S.W.3d 802, 813

- 14 (Tex. 2005). “ When circumstantial evidence is so slight that the choice between o pposing plausible inferences amounts to nothing more than speculation, it is legally no evidence at all. ” Muela v. Gomez, 343 S.W.3d 491, 496 (Tex. App.

— El Paso 2011, no pet.) (citing Lozano v.

4 The parties subsequently entered into an agreed order providing that all estate funds, in cluding the distributed assets, would be held until further court order.

5 Wilson filed an amended inventory after Luker filed an objection asserting errors in the inventory

.Estate of Ross Page 13

Lozano, 52 S.W.3d 141, 148 (Tex. 2001) )

. If we d isregard Wil son‖s testimony that he transferred the assets in carrying out his executor‖s duties, an inference that he was doing so is equally plausible with having a fraudulent motive. Likewise, an inference that Wilson‖s omission of $130,000 in assets from the orig inal inventory was the result of a mere oversight is equally plausible with having a fraudulent motive. Accordingly, this circumstantial evidence of motive is speculation and no evidence. In conclusion, none of Luker‖s summary

- judgment evidence rais e s a g e nuine issue of material fact on the existence and exertion of influence by Wilson or Don Ross. The trial court properly granted Wilson‖s no

- evidence motion for summary judgment on that ground. Because the trial court properly granted Wilson‖s no

- evidence motion for summary judgment on both of Luker‖s claims, we overrule in part issue two and need not address the trial court‖s grant of Wilson‖s traditional motion for summary judgment. We also thus need not address issue one , which concerns the trial court‖ s

over ruling Luker‖s objections to Wilson‖s summary

- judgment evidence in support of Wilson‖s traditional motion for summary judgment

. W e affirm the trial court‖s order granting Wilson‖s no

- evidence motion for summary judgment.

REX D. DAVIS JusticeEstate of Ross Page 14

Before Chief Justice Gray, Justice Davis , and Justice Scoggins Affirmed Opinion delivered and filed November 30, 2011 [CV06]