Affirmed and Memorandum Opinion filed December 28, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00773-CV

CYNTHIA MYNARD, Appellant

V.

CHARLES ASHLEY DEGENHARDT, Appellee

On Appeal from the County Court at Law No. 4

Williamson County, Texas

Trial Court Cause No. 20-0860-CP4

M E M O R A N D U M O P I N I O N

Cynthia Mynard appeals an order admitting to probate the will of her mother, 

Jacqueline Mynard (“Jackie”), and authorizing letters testamentary that named 

Jackie’s grandson, Charles Ashley Degenhardt, the dependent executor of the estate. 

See Tex. Est. Code § 32.001(c) (allowing appeals to the court of appeals). Cynthia 

contested Charles’s application to probate the will and offered a later-dated 

purported holographic codicil that she contended revived one of Jackie’s earlier 

wills. In the probated will, Jackie left her estate largely to her grandson Charles and 
2

to her daughter, Pamela Mynard, who is Charles’s mother; Cynthia and Lee Mynard, 

Jackie’s two other adult children, were explicitly disinherited and left only $500 

each. 

Cynthia challenges the admission of the will to probate in six issues: (1) the 

trial court erred by refusing to admit the later-dated purported holographic codicil 

reviving an earlier formal will to probate; (2) the trial court erred by admitting the 

will Charles offered to probate; (3) the trial court erred in finding the revocation 

clause of the probated will revoked an earlier will; (4) the trial court erred by 

excluding certain evidence Cynthia offered, which was not harmless; (5) the trial 

court erred in refusing to file findings on omitted issues necessary to support its 

judgment; and (6) the trial court erred in denying Cynthia’s request for attorney’s 

fees. 

After a thorough review of the record, we conclude that the trial court did not 

abuse its discretion by admitting to probate the will Charles offered, nor did any 

evidentiary errors or the failure to file amended findings result in any harm to 

Cynthia. Finally, we conclude that the trial court was within its discretion to deny 

Cynthia’s request for attorney’s fees. Accordingly, we affirm the trial court’s order.

Background

Jackie died on August 20, 2020 when she was 86 years old. She was survived 

by two of her three adult children, Pamela and Cynthia. Her son Lee predeceased 

her. 

In March 2016, Jackie’s attorney, Merlin Lester, prepared a formal, selfproved will (the “March 2016 will”). In the March 2016 will, Jackie divided her 

estate equally among her three children. 
3

In April 2018, Jackie executed another will (the “April 2018 will”), in which 

she revoked the March 2016 will and largely split her estate between Pamela and 

Charles, on the one hand, and Cynthia, on the other. Jackie disinherited Lee in this 

will, leaving him only $10. Jackie signed this will in the presence of two witnesses 

and a notary at her local bank. According to the will’s notary, Jackie brought the 

two witnesses in with her to the bank to execute the April 2018 will. Both witnesses 

verified that they were present when Jackie executed this will.

Around May of 2018, Charles and Pamela moved in with Jackie to help care 

for her as her health was declining. Cynthia lived in Virginia and was unable to 

move to Texas full-time to help with Jackie’s care, although she visited regularly. 

On July 21, 2018, while Jackie was in the hospital being treated for 

pneumonia, she executed a new will (the “July 2018 will”). Charles drafted this will

by making changes, purportedly at Jackie’s direction, to the April 2018 will. In the 

July 2018 will, Jackie revoked her prior wills and explicitly disinherited both Lee 

and Cynthia, except for leaving them $500 each. She divided her estate among 

Pamela and Charles. Jackie read and signed the July 2018 will in the presence of 

two disinterested witnesses, Curtis Marley and Michelle Tribble, and a notary, Beth 

Barton.1 Barton gave the will to Jackie after it was executed, witnessed, and 

notarized. However, shortly before Jackie’s death, Charles returned the July 2018 

will to Barton for “safekeeping.”

Also in July 2018, Jackie contacted Lester about preparing a new will, and 

Lester drafted a new will for her to sign. In this draft will, Jackie excluded Lee and 

Cynthia from receiving any benefits of her estate, except a distribution of $1,000 to 

each of them; she split the remainder of her estate among Charles and Pamela. Jackie 

1 Barton went to the hospital’s waiting room to find the witnesses, neither of whom knew 

any of the parties to the will or the notary. 
4

had an August 29, 2018 appointment to sign this will, but she did not appear for the 

appointment. The only signed testamentary document Lester had in his files was 

Jackie’s March 2016 will. 

As shown below, Jackie made the following handwritten notations on a copy 

of the March 2016 will: “Addendum. 8-14-19. Lots in Zent Subdivision #’s 12, 13, 

14 be given have been sold to Robert Winnon Lee, my brother — [signed] Jacqueline 

Lee Mynard JLM” (the “August 2019 addendum”). 

It is unclear when the “be given” language was struck through and the notation “have 

been sold” was added to the addendum. 

After Jackie’s death, Charles filed an application to probate the July 2018 will. 

Cynthia filed a counter-application to probate a copy of the August 2019 addendum, 

alleging that it was a holographic codicil that revived the March 2016 will and 

revoked the July 2018 will. Cynthia contended that only the original language, not 

the struck-through portion, constituted a codicil. She did not have an original of 

either the August 2019 addendum or the March 2016 will.

The trial court conducted a four-day bench trial on Charles’s and Cynthia’s 

competing applications for probate. After the trial, the trial court admitted the July 
5

2018 will to probate, named Charles as the dependent executor of Jackie’s estate,

and issued letters testamentary. The trial court ordered that “no attorney’s fees are 

being awarded to either party,” making each party responsible for their own 

attorney’s fees in this will contest.

At Cynthia’s request, the trial court signed findings of fact and conclusions of 

law. Pertinently, the trial court found that:

• on April 12, 2018, Jackie executed a prior will with the formalities and 

solemnities and under the circumstances required by law to make it 

valid;

• the April 2018 will revoked all prior wills;

• in June 2018, Jackie sent an email to Cynthia, Lee, and Lee’s wife 

Mary, expressing how upset she was with them;

• the July 2018 will was executed with the formalities and solemnities 

and under the circumstances required by law to make it valid;

• Jackie had sufficient mental ability to understand she was making the 

July 2018 will and she was not unduly influenced;

• the July 2018 will was proved by the sworn testimony of two 

disinterested witnesses, Marley and Tribble, and the notary who 

witnessed the signatures of Jackie, Marley, and Tribble;

• the July 2018 will revoked all prior wills;

• the July 2018 will was not subsequently revoked;

• the August 2019 addendum was not a codicil;

• Cynthia did not produce an original of the August 2019 addendum;

• Cynthia did not produce an original of the March 2016 will;

• the March 2016 will was revoked by the April 2018 will;

• the March 2016 will was not revived by the copy of the August 2019 

addendum; and

• neither Charles nor Pamela destroyed any of Jackie’s prior wills.
6

Based on its findings, the trial court concluded that Charles satisfied his required 

burden of proof to establish admission of the July 2018 will to probate and that 

Cynthia failed to satisfy her required burden of proof to establish admission of the 

copy of the August 2019 codicil and March 2016 will to probate.

Cynthia sought additional findings of fact, but the trial court declined to issue 

any. Cynthia appeals.

Analysis

A. Admission of the July 2018 Will to Probate

In her first three issues, Cynthia challenges the trial court’s admission of the 

July 2018 will to probate. We begin our analysis with the applicable standards of 

review.2

1. Standards of review

We generally review a trial court’s ruling on a probate application for an abuse 

of discretion. Castillo v. Castillo-Wall, No. 03-21-00081-CV, 2022 WL 1434110, 

at *2 (Tex. App.—Austin May 6, 2022, no pet.) (mem. op.); In re Est. of Gay, 309

S.W.3d 676, 679 (Tex. App.—Houston [14th Dist.] 2010, no pet.). A trial court 

abuses its discretion if it acts in an arbitrary or unreasonable manner without 

reference to guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-

39 (Tex. 2004); Gay, 309 S.W.3d at 679. A trial court also abuses its discretion if it 

misconstrues or misapplies the law. Gay, 309 S.W.3d at 679.

Under the abuse-of-discretion standard, legal and factual sufficiency of the 

evidence are not independent grounds for asserting error, but they are relevant 

2 The Supreme Court of Texas ordered the Third Court of Appeals to transfer this case to 

our court. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court 

of Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.
7

factors in assessing whether the trial court abused its discretion. Est. of Brown, No. 

01-19-00953-CV, 2022 WL 17813757, at *6 (Tex. App.—Houston [1st Dist.] Dec. 

20, 2022, pet. filed) (mem. op.); see Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. 

App.—Houston [14th Dist.] 2013, no pet.). A trial court does not abuse its discretion 

when some evidence of a substantive and probative character exists to support the 

trial court’s decision. Flowers, 407 S.W.3d at 457. 

When examining legal sufficiency, we review the entire record, considering 

evidence favorable to the finding if a reasonable factfinder could and disregarding 

contrary evidence unless a reasonable factfinder could not. Gunn v. McCoy, 554 

S.W.3d 645, 658 (Tex. 2018); In re Est. of Parrimore, No. 14-14-00820-CV, 2016 

WL 7520293, at *4 (Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. 

op.). We indulge every reasonable inference that would support the challenged 

finding. Gunn, 554 S.W.3d at 658; Parrimore, 2016 WL 7520293, at *4. Evidence 

is legally sufficient if it would enable reasonable and fair-minded people to reach 

the decision under review. Gunn, 554 S.W.3d at 658; Parrimore, 2016 WL 

7520293, at *4. For a factual-sufficiency review, we examine the entire record and 

consider evidence favorable and contrary to the challenged finding. Cain v. Bain, 

709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Parrimore, 2016 WL 750293, at *5. 

We may set aside the finding only if it is so contrary to the overwhelming weight of 

the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; Parrimore, 

2016 WL 750293, at *5. When considering the sufficiency of the evidence, we must 

remain mindful that this court is not a factfinder, and the trial court is the sole judge 

of the witnesses’ credibility and the weight to afford their testimony. See Parrimore, 

2016 WL 750293, at *4-5.
8

2. The August 2019 addendum is not a codicil

In her first issue, Cynthia asserts the trial court erred by refusing to recognize 

the August 2019 addendum as a codicil. Cynthia contends that this “codicil” revived 

the March 2016 will and that both should have been admitted to probate. The trial 

court disagreed, finding that “the copy of a handwritten memorandum dated August 

2019 is not a codicil.” We agree with the trial court.

“A codicil is a testamentary writing that is supplementary to an earlier 

testamentary writing and must be executed with the formalities required in the 

making of a will.” Phillips v. Copeland, No. 01-12-00492-CV, 2013 WL 1932179, 

at *4 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.). These 

formalities include, as applicable here, that the codicil must be wholly in the 

testator’s handwriting and signed by the testator in person. See Tex. Est. Code 

§§ 251.051-.052. Additionally, a codicil must make sufficient reference to the will 

it amends, and it must express testamentary intent. See In re Est. of Hendler, 316 

S.W.3d 703, 708 (Tex. App.—Dallas 2010, no pet.). Testamentary intent is the 

intent to create a revocable disposition of property that will take effect after death. 

Hinson v. Hinson, 280 S.W.2d 731, 733 (Tex. 1955); In re Est. of Silverman, 579 

S.W.3d 732, 736 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Hendler, 316 

S.W.3d at 708. “The introduced writing must contain an explicit statement declaring 

that the writings are wills or codicils or that the property division will take place only 

after the testator’s death.” Wilson v. Franks, No. 03-22-00718-CV, 2023 WL 

6627522, at *2 (Tex. App.—Austin Oct. 12, 2023, no pet. h.) (mem. op.). 

Construction of a testamentary instrument is a question of law when the instrument 

is not ambiguous. Id. However, if it is unclear from the language of an instrument 

whether its maker created it with testamentary intent, we may consider evidence of 

surrounding facts and circumstances. See Hendler, 316 S.W.3d at 708.
9

Here, the August 2019 addendum stated, “Lots in Zent Subdivision #’s 12, 13, 

14 be given have been sold to Robert Winnon Lee, my brother.” Cynthia contends 

that Jackie’s testamentary intent is evidenced by the stricken language that the Zent 

lots would be “given” to her brother. Cynthia effectively asked the trial court to 

ignore that this language was stricken and replaced with “have been sold.” Cynthia 

testified that the “original” language—i.e., “be given”—appeared to have been

written with a “fine ball point pen,” while the “have been sold” language appeared 

to have been written “in a thicker, maybe like a medium point pen.” Although it is 

true that the “have been sold” notation appears bolder than the struck through words, 

there is simply no way to tell when the strike-through and substitution occurred. As

written, the August 2019 addendum expresses no testamentary intent and instead 

reflects merely that some of Jackie’s property was sold to her brother. 

Even if we were to credit the stricken “be given” language, nothing in the 

addendum reflects that Jackie intended that the property be given to her brother upon 

her death. See Hinson, 280 S.W.2d at 733-34; Wilson, 2023 WL 6627522, at *2; 

Silverman, 679 S.W.3d at 736; Hendler, 316 S.W.3d at 708. At most, the notations 

express Jackie’s intent to give this property to her brother at some point in the 

future.3 Cf. In re Est. of Schiwetz, 102 S.W.3d 355, 363-64 (Tex. App.—Corpus 

Christi 2003, pet. denied) (explaining that when writings contained no explicit 

statements that they were wills or codicils or that the property division would take 

place after the decedent’s death, they at most expressed an intent on the decedent’s 

part to dispose of her property in the future and thus lacked the necessary 

3 Lester testified that, around the time that the addendum was written, he was assisting 

Jackie in selling this property to Robert. According to Lester, the real estate transactions may have 

been “underway” when Jackie made the notations, although no formal contract had been drafted 

and no money—so far as Lester knew—had changed hands. Because this evidence undermines 

any potential testamentary intent expressed in the August 2019 addendum, it also supports the trial 

court’s finding that the addendum was not a codicil. 
10

testamentary intent to constitute a codicil); In re Est. of Graham, 69 S.W.3d 598, 

608 (Tex. App.—Corpus Christi 2001, pet. denied) (“A document that merely 

evidences an intention to dispose of the property is not a will.”).

In short, we agree with the trial court that the August 2019 addendum was not 

a codicil, and we hold that the trial court did not abuse its discretion in refusing to 

admit the August 2019 addendum to probate. Because we conclude that the trial 

court did not err in rejecting the addendum as a codicil, we need not address 

Cynthia’s arguments concerning whether the addendum revived Jackie’s earlier 

March 2016 will or revoked the July 2018 will.

We overrule Cynthia’s first issue.

3. Cynthia did not establish the July 2018 will was the result of undue

influence

In issue two, Cynthia urges that the trial court erred by admitting the July 2018 

will to probate. She first asserts that Charles failed to establish that Jackie did not 

revoke this will, relying on her arguments concerning the August 2019 addendum 

addressed above. Because we have determined that the trial court did not abuse its 

discretion in determining that the August 2019 addendum was not a codicil, we do 

not revisit those arguments here. Thus, we confine our discussion to Cynthia’s 

arguments that the July 2018 will was the product of undue influence by Pamela and 

Charles. Cynthia asserts that the trial court’s finding that Jackie was not unduly 

influenced when she executed this will is based on legally and factually insufficient 

evidence. We disagree. 

Undue influence is a ground for setting aside a will. See Rothermel v. Duncan, 

369 S.W.2d 917, 922 (Tex. 1963). A will contest based on a claim that the will was 

procured by undue influence has three elements: (1) an influence existed and was 

exerted; (2) the exertion of the influence subverted or overpowered the mind of the 
11

testator at the time she signed the will; and (3) the testator would not have made the 

will but for the influence. See In re Est. of Woods, 542 S.W.2d 845, 847 (Tex. 1976); 

Rothermel, 369 S.W.2d at 922; In re Est. of Casas, No. 14-20-00575-CV, 2022 WL 

711087, at *3 (Tex. App.—Houston [14th Dist.] Mar. 10, 2022, no pet.) (mem. op.). 

The burden to prove undue influence normally rests on the party challenging the 

instrument’s validity. Casas, 2022 WL 711087, at *3.

To satisfy the first element, the will contestant must show that an influence 

existed and was exerted. Rothermel, 369 S.W.2d at 922. Relevant factors include: 

(1) the nature and type of relationship existing between the testator, the contestant, 

and the party accused of exerting such influence; (2) the opportunities for the 

exertion of the alleged influence; (3) the circumstances surrounding the drafting and 

execution of the will; (4) the existence of a fraudulent motive; and (5) whether the 

testator was habitually under the control of another. Id. at 923. The exertion of 

influence, however, cannot be inferred from opportunity alone, such as might result 

from caring for the testator or seeing to her needs. Id. There must be proof showing 

both that the influence existed and that it was exerted. Id.; Casas, 2022 WL 711087, 

at *4.

Regarding the relationships between Jackie, Cynthia, Pamela, and Charles, 

Cynthia testified that she enjoyed a loving and supportive relationship with Jackie. 

Cynthia had lived in Virginia for about twenty-eight years before Jackie’s death, 

although she visited Jackie once or twice a year and maintained frequent contact 

through phone calls, letters, and cards. In early 2018, Jackie asked Cynthia to move

to Texas to take care of her, but Cynthia could not. Additionally, Jackie’s sister-inlaw, Penny Lee, testified that she was not aware of any friction between the two 

during the last few years of Jackie’s life. 
12

However, Beth Barton, the individual who notarized Jackie’s July 2018 will 

and had known Jackie since 1992, testified that in 2018 Cynthia and Lee placed calls 

to Jackie in an effort to pressure her to change her will. Barton’s testimony is 

supported by a message that Jackie sent to Cynthia, Lee, and Lee’s wife, Mary, about 

six weeks before Jackie signed the July 2018 will.4 This message, sent in June 2018,

detailed substantial conflict between Jackie and the message’s recipients, including

Cynthia, and indicated that Lee and Cynthia made unwelcome phone calls to Jackie 

and her attorney inquiring about Jackie’s will and financial arrangements; it further 

stated that Cynthia, Lee, and Mary were not welcome in Jackie’s home unless Jackie 

invited them. The message expressed that Jackie was greatly hurt by Cynthia’s, 

Lee’s, and Mary’s actions taken since Pamela and Charles moved in to help take 

care of her.

Cynthia described Jackie’s relationship with Pamela as “tense” and “volatile.” 

Robert Lee, Jackie’s younger brother, testified that Pamela could be confrontational

and controlling. Cynthia and Robert were both surprised when Pamela moved into 

Jackie’s home. According to Penny and Robert, after Pamela and Charles moved 

in, Jackie became more withdrawn, tense, and nervous, and Pamela became more 

controlling of Jackie; Robert said that Jackie appeared fearful of Pamela. 

That Pamela and Charles moved in with Jackie and were living with her as 

her health was declining shows that they had the opportunity to exert influence on 

her as to the execution of the July 2018 will. Cynthia suggests that Pamela and 

Charles “carried out a plan to isolate Jackie from her other children,” pointing to

4 The trial court found that Jackie sent this message. Cynthia does not dispute that she 

received this message. However, she contends that the trial court’s finding was erroneous, based 

on the “context and surrounding circumstances.” The trial court, however, as the sole judge of the 

witnesses’ credibility and the weight to be given their testimony, was entitled to determine whether 

the context and surrounding circumstances indicated that Jackie sent the message. 
13

Cynthia’s testimony that Jackie was hospitalized in April 2018 but no one told her. 

Cynthia also suggests that Jackie’s June 2018 message shows that Pamela and 

Charles were isolating Jackie because in the message, Jackie told Cynthia, Lee, and 

Mary not to visit her without an invitation. Cynthia’s contention turns on her claim 

that Pamela, not Jackie, sent the message. But her argument is contrary to the trial 

court’s finding. And the message stated that Jackie asked Pamela and Charles to 

move in with her so that she could “receive the constant care [she] need[s] now and 

in the future, from THEM, so that [she] would not become a physical, emotional or 

financial burden on [Cynthia, Lee, or Mary].” The message expressed appreciation 

for Pamela and Charles and stated that they were “not using” Jackie in any way.

Cynthia presented some evidence that Pamela and Charles had the opportunity

to influence Jackie. But opportunity to exert influence is not alone sufficient to show 

undue influence. See Rothermel, 369 S.W.2d at 923; Casas, 2022 WL 711087, at 

*5. Cynthia was required to show that Charles or Pamela actually exerted an 

influence over Jackie that subverted or overpowered Jackie’s mind at the time she 

signed the will. Rothermel, 369 S.W.2d at 922. On this element, relevant 

considerations include: (1) the testator’s state of mind and evidence relating to her 

ability to resist or susceptibility to the influence of another, such as mental or 

physical infirmity or incapacity, when the testament was executed; and (2) the 

testator’s words and acts. Id. at 923. 

Regarding whether Charles or Pamela actually exerted an influence over 

Jackie, the record contains scant evidence. For example, there is no evidence that 

Charles or Pamela ever asked or urged Jackie to change her will to favor them. 

Instead, Cynthia’s argument that they exerted an undue influence is based on 

circumstantial facts, such as that Pamela and Charles were Jackie’s caretakers, the 
14

will was drafted only a few months after they moved in to help care for Jackie, and 

that Charles purportedly “authored” the will.

Although Jackie’s physical health was declining, there was no evidence that, 

at the time she signed the will, her mental health was in decline or that she was 

mentally incapacitated in any way. Cf. Casas, 2022 WL 711087, at *5 (describing 

mental decline of testator). Charles described Jackie as a “headstrong” person. 

Similarly, Barton, a disinterested witness, testified that Jackie was a “strong lady” 

who “had her own way of doing things.” Indeed, Cynthia acknowledges that 

“Jackie’s mind was strong, but her age and health condition prevented her from 

taking care of herself at home any longer.” She contends that these facts left Jackie 

“vulnerable and susceptible to Pamela and [Charles], dependent upon them to 

provide for her care. . . .” But “close relations or the provision of care standing alone 

do not suffice to show undue influence.” Casas, 2022 WL 711087, at *4 (citing 

Guthrie v. Suiter, 934 S.W.2d 820, 832 (Tex. App.—Houston [1st Dist.] 1996, no 

writ); Evans v. May, 923 S.W.2d 712, 715 (Tex. App.—Houston [1st Dist.] 1996, 

writ denied)).

5

When, as here, the relevant witnesses are available, their testimony about the 

planning and preparation of the challenged will is central to a claim of undue 

influence. Yost v. Fails, 534 S.W.3d 517, 526 (Tex. App.—Houston [1st Dist.] 2017, 

no pet.). Although no one testified about the planning of the July 2018 will,6there 

was ample testimony about the will’s preparation by those present when it was 

5

Indeed, Cynthia would be hard-pressed to argue that Jackie was in such mental decline 

by 2018 that she lacked capacity to execute the July 2018 will since Cynthia expressly argued in 

her brief that “Jackie Had Testamentary Capacity” as of August 14, 2019. 

6 We note, however, that Charles repeatedly testified that he and Jackie never discussed 

how Jackie wanted to dispose of her estate. Cynthia does not identify any evidence that Pamela 

discussed or expressed her desires as to the content of Jackie’s will, nor was Pamela present at the 

will’s signing.
15

drafted and executed. First, although Cynthia contends that Charles was the “author”

of the July 2018 will, Charles testified that Jackie dictated the terms of the will to 

him and he merely recorded her wishes. Barton witnessed Jackie dictating the terms 

of the will to Charles and agreed that the July 2018 will reflected the terms that 

Jackie requested. Second, when Barton questioned Jackie about the will’s terms, 

Jackie stated that she was “very certain” about them. Barton specifically asked 

Jackie if she wanted to leave Cynthia and Lee only $500 each; Jackie responded, 

“Yes, this is what I want to do.”7 Third, Marley and his daughter, Tribble, testified 

that Jackie did not seem to be influenced by anyone. Marley agreed that Jackie 

reviewed the will before she signed it. Marley and Tribble spoke with Jackie for 

about thirty minutes on the day she executed the will, and neither saw any signs of 

duress. In fact, Marley described Jackie as “very relaxed and casual.” Tribble stated 

that nothing about Jackie’s demeanor caused her any concern about Jackie’s mental 

state, nor did anything lead her to believe that Jackie was afraid, frightened, or being 

influenced by anyone when she signed the will. In sum, nothing in the testimony 

offered by the witnesses present at the will’s execution supports a finding that either 

Pamela—who was not present—or Charles actually exerted an undue influence over 

Jackie at the time she executed the July 2018 will. See In re Est. of Kam, 484 S.W.3d 

642, 653-54 (Tex. App.—El Paso 2016, pet. denied) (overturning trial court’s 

finding of undue influence when there was insufficient evidence that alleged 

influencer actually overwhelmed testator’s free agency).

We are mindful that undue influence may be established by circumstantial 

evidence, but the circumstances must be of “a reasonably satisfactory and 

convincing character” and “not be equally consistent with the absence of the exercise 

7 Barton testified that Jackie told her that, between April and July 2018, Cynthia and Lee

were calling and “pressuring [Jackie] to do something different with her will.” Barton described 

Jackie as “very saddened” by their actions.
16

of such influence.” Rothermel, 369 S.W.2d at 922-23. Influence is undue only if 

the volition of the testator is destroyed and the resulting will expresses the wishes of 

the one exerting the influence. Id. at 922. Such undue influence may include force, 

intimidation, duress, excessive importunity, or deceit. Id. There is no evidence in 

today’s case of any force, intimidation, duress, excessive importunity, or deceit by 

either Charles or Pamela as it relates to Jackie’s execution of the July 2018 will. If 

the relevant conduct is not so excessive as to actually subvert the testator’s will, it 

will not taint the instrument’s validity. Id. This is so because Texas respects the 

legal rights of testators of sound mind to dispose of their property as they see fit; 

those desires should not be set aside based upon a mere surmise or suspicion of 

wrongdoing. Id.; Casas, 2022 WL 711087, at *4.

Cynthia relies on evidence she proffered that Jackie was fearful of Pamela and 

Charles and wanted them to move out of her home. But most of this evidence arose 

months after the signing of the July 2018 will, and the trial court excluded that

evidence which was not temporally connected to the will’s signing.

8

 Importantly, 

the testimony from the three disinterested witnesses who were present at the July 

2018 will’s execution describing Jackie’s demeanor, mental state, and words 

evidenced that any exertion of influence by Pamela or Charles did not subvert or 

overpower Jackie’s mind at the time she signed the will.

9 See Rothermel, 369 

S.W.2d at 923 (“Where there is competent evidence of the existence and exercise of 

such influence, the issue as to whether it was effectually exercised necessarily turns 

the inquiry and directs it to the state of the testator’s mind at the time of the execution 

of the testament. . . .”); see also Casas, 2022 WL 711087, at *9-11 (discussing cases 

8

See infra, section B, where we address Cynthia’s evidentiary complaints.

9 Cynthia proffered no evidence that Jackie was fearful of Charles around the time she 

executed the July 2018 will; rather, her proffered evidence focused on Jackie’s purported fear of 

Pamela. And, as noted above, Pamela was not present when Jackie signed the will. 
17

involving undue influence). Because there is no evidence that the existence and 

actual assertion of influence upon Jackie actually overpowered her mind or desires, 

we need not analyze the evidence pertaining to the third element of undue 

influence—whether Cynthia established that Jackie would not have made the 

challenged will but for the influence. E.g., In re Est. of Sidransky, 420 S.W.3d 90, 

95 (Tex. App.—El Paso 2012, pet. denied) (“Evidence concerning one element is 

insufficient because each element is necessary to establish a claim of undue 

influence.”) (citing Rothermel, 369 S.W.2d at 923).

In sum, we conclude that a reasonable and fair-minded factfinder could find

that any exertion of Pamela’s or Charles’s influence did not subvert or overpower 

Jackie’s mind at the time she signed the will. Further, such a finding is not so 

contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust. The trial court’s finding that the July 2018 will was executed without undue 

influence is supported by legally and factually sufficient. 

We overrule Cynthia’s second issue.

4. The July 2018 will revoked the April 2018 will

In her third issue, Cynthia argues that the trial court erred by finding that the 

July 2018 will revoked the April 2018 will. The July 2018 will contains an explicit 

revocation clause: “I hereby revoke any and all former Wills and Codicils thereto 

made by me and declare this my Last Will and Testament.” Thus, as Cynthia 

acknowledges in her briefing, this issue turns on whether the July 2018 will is 

invalid. See Abbott v. Foy, 662 S.W.2d 629, 631 (Tex. App.—Houston [14th Dist.] 

1983, writ ref’d n.r.e.) (an invalid will cannot serve to revoke a former will). We 

have determined that the trial court did not err in admitting the July 2018 will to 

probate. 
18

We overrule Cynthia’s third issue.

B. Exclusion of Evidence

In issue four, Cynthia contends the trial court committed harmful error by 

erroneously excluding various evidence she offered. 

1. Standard of review

The decision to admit or exclude evidence lies within the sound discretion of 

the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 

(Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or 

unreasonable manner or without reference to guiding rules or principles. Izen v. 

Laine, 614 S.W.3d 775, 795 (Tex. App.—Houston [14th Dist.] 2020, pets. denied). 

When reviewing matters committed to the trial court’s discretion, we may not 

substitute our own judgment for that of the trial court. Id. We will uphold the trial 

court’s evidentiary ruling if there is any legitimate basis for the ruling, even if that 

ground was not raised in the trial court. Id. 

A party seeking to reverse a judgment based on evidentiary error must prove 

that the error probably resulted in rendition of an improper judgment. Id.; see Tex. 

R. App. P. 44.1(a)(1). To determine whether evidentiary error probably resulted in 

the rendition of an improper judgment, we review the entire record. Izen, 614 

S.W.3d at 795.

2. No abuse of discretion shown

Much of Cynthia’s argument in support of this issue turns on her contention 

that the August 2019 addendum was, in fact, a codicil, an argument we have rejected. 

For example, Cynthia argues that Penny Lee’s testimony10 regarding events in June 

10 Cynthia preserved this complaint by making an offer of proof describing the content of 

Penny’s excluded testimony. See Tex. R. Evid. 103; Tex. R. App. P. 33.1(a)(1)(B).
19

2020 was relevant because it was necessary to overcome the presumption of 

revocation when attempting to probate a copy of the August 2019 addendum. And 

Cynthia asserts that the exclusion of some of Robert Lee’s testimony and audio 

recordings11 was harmful error because, without this evidence, she could not: 

(a) overcome the presumption that the original August 2019 addendum was 

destroyed by Jackie; (b) show that Jackie’s state of mind prior to executing the 

August 2019 addendum was consistent with the addendum’s substance; (c) show 

that Jackie’s affection for Charles and Pamela, the “beneficiaries under the prior July 

2018 Will” had changed, and Jackie desired to change that will; and (d) show 

Jackie’s desire to leave her estate to all of her children.

Because we have concluded that the August 2019 addendum was not a codicil, 

the exclusion of this evidence could not have resulted in the rendition of an improper 

judgment. See Tex. R. App. P. 44.1(a)(1). Thus, we need not address whether the 

trial court abused its discretion in excluding the evidence related to the August 2019 

addendum. See Tex. R. App. P. 47.1.

Cynthia also asserts that some of Robert’s excluded testimony and audio 

recordings “support that the July 2018 Will and its disposition of [Jackie’s] estate 

was unnatural,” thus showing that the July 2018 will was a product of undue 

influence. But as explained above, we concluded that legally sufficient evidence 

supports the trial court’s finding that the July 2018 will was not signed under duress 

because there was no evidence that Pamela’s or Charles’s influence, if any,

subverted or overpowered Jackie’s mind at the time she signed the will. See 

Rothermel, 369 S.W.2d at 923 (“The exertion of influence that was undue cannot be 

11 Cynthia’s counsel made an offer of proof, describing what Robert’s testimony would 

have consisted of and including the audio recordings, as well as transcripts of the recordings, in 

the record. See Tex. R. Evid. 103.
20

inferred alone from opportunity, but there must be some testimony, direct or 

circumstantial, to show that influence was not only present but that it was in fact 

exerted with respect to the making of the testament itself.” (emphasis added)). Once 

we reached this conclusion, we did not—and need not—determine whether the 

disposition of Jackie’s estate was unnatural. See id. at 924 (“The elements of the 

exertion and the effective operation of any influence possessed by Louis over his 

mother so as to subvert or overpower her will and cause the execution of this 

testament are not supported by any tangible evidence. Because of the disposition 

we make of this case we need not consider the other issues raised on this appeal.”). 

Accordingly, the trial court’s exclusion of any evidence going to this element did 

not cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1); 

Mittelsted v. Meriwether, 661 S.W.3d 867, 898 (Tex. App.—Houston [14th Dist.] 

2023, pet. denied) (evidentiary errors are generally not grounds for reversal unless 

the appellant demonstrates that the judgment turns on the challenged evidence or the 

challenged evidence is controlling on a material, disputed, dispositive issue).

Finally, Cynthia complains about the trial court’s exclusion of testimony and 

a journal kept by Anna Barrientez, one of Jackie’s in-home caregivers. Barrientez 

did not begin working for Jackie until April 2020, nearly two years after the July 

2018 will’s execution. Cynthia’s counsel sought to introduce Barrientez’s journal 

as a business record.12 Charles’s counsel objected to the admission of the journal

because it was not temporally relevant to any purported testamentary documents, it 

contained hearsay, and it contained Jackie’s private medical information in violation 

of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).13

12 Cynthia preserved error on this issue by making an offer of proof. See Tex. R. Evid. 

103; Tex. R. App. P. 33.1(a)(1)(B).

13 Pub. L. No. 104-191, 110 Stat. 1936.
21

After expressing concerns about potential HIPAA issues with the journal, the trial 

court sustained Charles’s objection on relevance and hearsay grounds. 

Cynthia’s counsel then sought to question Barrientez about her time with 

Jackie, and Charles’s counsel objected:

Your Honor, I’m going to object to the testimony of this witness on the 

basis of relevance. If her testimony involves the period from April of 

2020 and thereafter it is not relevant in this case as there have been no 

testamentary documents alleged by either party to have been executed 

during that time period.

Cynthia responded that Barrientez’s testimony was relevant because it “established 

the foundation of Jackie Mynard’s testamentary intent for the writing that Jackie

Mynard signed on August [sic] of 2019, and it shows that Ms. Mynard did not 

abandon that intent.” Counsel explained that Barrientez’s testimony would show 

that Jackie’s “affections changed for the people from her previously dated will of 

July of 2018.”

Although Barrientez’s testimony and journal may have shown Jackie’s state 

of mind after April of 2020, it has no bearing on her state of mind in July 2018, when 

she executed the will admitted to probate. Cf. In re Est. of Spiller, No. 04-22-00050-

CV, 2023 WL 2733403, at *5-6 (Tex. App.—San Antonio Mar. 31, 2023, no pet.) 

(mem. op.) (medical records concerning testator’s mental state from July 2005 did 

not raise fact issue as to whether testator was unduly influenced into signing will in 

November 2006). Thus, this evidence has no “tendency to make a fact more or less 

probable than it would be without the evidence,” Tex. R. Evid. 401, and the trial 

court did not abuse its discretion in excluding it. To the extent that Cynthia sought 

to introduce this testimony to further her claim that the August 2019 addendum was 

a codicil, we have already determined that this writing does not qualify as such. 
22

Thus, the exclusion of this evidence did not cause the rendition of an improper 

judgment. See Tex. R. App. P. 47.1(a)(1). 

We conclude that Cynthia did not establish that the trial court’s exclusion of 

this evidence was reversible error. We overrule her fourth issue.

C. Additional Findings

In her fifth issue, Cynthia contends the trial court reversibly erred by refusing 

to file additional findings and conclusions as she requested. Specifically, Cynthia 

asserts that the trial court erred by: (1) refusing to include any factual findings on 

which it based its finding that the August 2019 addendum was not a codicil and did 

not revive the March 2016 will or revoke the July 2018 will; (2) failing to address 

the shifting burden of proof, which Charles was required to overcome; and (3) failing 

to provide findings and conclusions regarding undue influence14 and attorney’s fees. 

The trial court shall make any additional findings and conclusions that are 

appropriate within ten days after a request is filed. Tex. R. Civ. P. 298; Johnston v. 

McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex. App.—Houston [14th Dist.] 1999, 

pets. denied). However, if the record shows that the complaining party did not suffer 

injury from the court’s refusal to file additional or amended findings and 

conclusions, reversal is not required. Flanary v. Mills, 150 S.W.3d 785, 792 (Tex. 

App.—Austin 2004, pet. denied); Johnston, 9 S.W.3d at 277. An appellant must 

show from the record that the trial court’s refusal to file the additional findings and 

conclusions was reasonably calculated to cause and did so cause the rendition of an 

improper judgment. Johnston, 9 S.W.3d at 277; see Tex. R. App. P. 44.1(a). When 

an appellant requests findings directly contrary to, or inconsistent with, the original 

14 Contrary to this contention, the trial court found that Jackie “had sufficient mental ability 

to understand that she was making [the July 2018 will] and was not unduly influenced.” (Emphasis 

added).
23

findings, the court need not make those requested findings. Id. Finally, if the 

requested findings will not result in a different judgment, those findings need not be 

made. Flanary, 150 S.W.3d at 793; Johnston, 9 S.W.3d at 277.

Here, Cynthia has not shown from the record how the trial court’s refusal to 

file such additional findings and conclusions was reasonably calculated to cause and 

did so cause the rendition of an improper judgment, nor has she shown she was 

prevented from adequately presenting her complaints on appeal. See Tex. R. App. 

P. 44.1(a). There is no evidence of injury to Cynthia because of the trial court’s 

refusing her request for additional or amended findings and conclusions. See 

Johnston, 9 S.W.3d at 271.

We overrule Cynthia’s fifth issue.

D. Attorney’s Fees

In her sixth and final issue, Cynthia contends the trial court abused its 

discretion in failing to award her attorney’s fees. Texas Estates Code section 

352.052 provides, in pertinent part as follows:

A person designated as a devisee in or beneficiary of a will or an alleged 

will who, for the purpose of having the will or alleged will admitted to 

probate, defends the will or alleged will or prosecutes any proceeding 

in good faith and with just cause, whether or not successful, may be 

allowed out of the estate the person’s necessary expenses and 

disbursements in those proceedings, including reasonable attorney’s 

fees.

Tex. Est. Code § 352.052(b). Thus, the trial court has the discretion to award 

attorney’s fees to devisees or beneficiaries who attempt to admit a will to probate. 

Id.; Code Construction Act, Tex. Gov’t Code § 31.016(1) (“ʻMay’ creates 

discretionary authority or grants permission or a power.”). 
24

In addition to the court’s discretionary authority to deny attorney’s fees, the 

July 2018 will states, “Any person that contests this Will, forfeits any and all rights 

of possession/ownership or awards and will be solely responsible for his/her 

attorney fees . . . .” (Emphasis added). When construing a will, courts focus on the 

testator’s intent, which must be ascertained from the language found within the four 

corners of the will if possible. ConocoPhillips Co. v. Ramirez, 599 S.W.3d 296, 301 

(Tex. 2020). Such in terrorem clauses “allow the intent of the testator to be given 

full effect and avoid vexatious litigation, often among members of the same family.” 

Di Portanova v. Monroe, 402 S.W.3d 711, 715-16 (Tex. App.—Houston [1st Dist.] 

2012, no pet.); Lesikar v. Moon, 237 S.W.3d 361, 369-70 (Tex. App.—Houston 

[14th Dist.] 2007, pet. denied). If the purpose of a suit involving a will is to thwart 

the testator’s intent, the forfeiture clause should be effectuated. Ferguson v. 

Ferguson, 111 S.W.3d 589, 599 (Tex. App.—Fort Worth 2003, pet. denied). 

Cynthia neither acknowledges nor discusses the effect of this clause on her 

claim for attorney’s fees. By its very language, however, it makes Cynthia, who 

undisputedly contested the July 2018 will’s validity, solely responsible for her own 

attorney’s fees. Given that provision, the trial court did not abuse its discretion in 

denying attorney’s fees to Cynthia. 

We overrule Cynthia’s sixth issue.
25

Conclusion

Having overruled each of Cynthia’s issues, we affirm the trial court’s order

admitting the July 2018 will to probate.

/s/ Kevin Jewell 

Justice

Panel consists of Justices Jewell, Spain, and Wilson.