## In the Court of Appeals Second Appellate District of Tex as

at Fort Worth

___________________________ No. 0 2

- 18

- 00356

- CV

___________________________

On Appeal from the County C ou rt Hood County, Texas Trial Court No. P08257
Before Sudderth, C.J.; Gabriel and Wallach, JJ. Memorandum Opinion by Chief Justice Sudderth Concurring and Dis senting Memorandum Opinion by Jus tice Wallach 

### I N THE 

### E STATE OF 

### W YNELL 

### N. K

LUTTS 

### , D ECEASED2 MEMORANDUM OPINION
I. Introduction
In four issues in this d uel ing

- wills case , Appellants Jan Margaret Mc K ee , Don na Vick, and Paula F uqua appeal the trial court ’ s summary judgment for their
step brother, Appel lee Michael O. Kor negay . We reverse and remand.

II. Factual and Procedural Background Fred and Wynell Klutts married in 1959 ; Michael was Wynell ’ s son f rom a prior marriage , and Jan, Donna, and Paula were Fred ’ s daughters from a prior marriage.
Fred die d in August 2007. Wynell died n ine years later. Between August 2007 and Au gu st 201 6, Wy nell executed four wills

— two in
20 07, one in 2008, and one in 2010.
In the first two wills , Wy

nell devised everything equally to the four children and appointed Micha el and Jan as co

- execut ors . In 2007, she also appointed Michael and Jan as her agents under a medical power of attorney and a s attorneys in fact in a d urab le general power of attorney instrument that requi red them to act jointly or to agree in writing to exercise such authority separa tely

. And Wynell ex ecuted a

“ Declaration of Guardian ” that expressly disqualified Donna and Paula from serving

as he r guardian in the event that she someday needed one. From December 2007 to April 2008, Wyn ell transferred as sets worth over $6.4 million

— ap proximately $1.6
millio n each

— to Jan , Donna, Paula, a nd Michael

.3

Wynell executed a third w ill on July 24, 2008 , in which she lef t eve r ything to
Michael and Jan in equal shares and stated that she had “ deliberately made no
pr ovision herein for the benefit of [her ] stepdaughters [] Do nna . . . and P au la . . ., for good and sufficient reaso ns which [she did] not care to enumerat e herein

. ” 1 She appointed Michael as her executor , with Jan to be her executor only if Michael predece ased Wyn ell , resigned, or became legally incompe tent to act as executor. Almost t wo years later, i n April 2010, Wynell execut ed a statutory durable
p o wer of attorney appointing Michael as her sole attorney in fact. Six months after
that , in October 2010, s he ex ecuted another will , in which she devised 78% of a
l imit ed par tnership to Michael , the remaining 22 % to Jan , and everything else to
Michael . In th e 2010 w

ill , she nam ed Michael as her executor and Donald L. Barley , who prepared both the 2008 and 20 10 wil l s , as the successor executor
. A f ter Wynell died in Augu st 2016 , Jan , Donna, an d Pa u la sought to admit the
2007 will to pro bate

. Michael challenged it , arguing that Wyne ll ’ s 2008 and 2010 will s had re voked the 2007 will , and he sought to admit Wy nell ’ s 2010 will to prob ate. 2 In

1 When Wy nell ’ s previous attorney noted his c oncern about Wyne ll ’ s expressed desire to disinh erit Paula and Donna , Mich ael engaged a different attorney to draft th e 2008 will

.

2 Prior to this case ’ s su bmissi on , we asked the parti es to e xplain how this court had j urisdict

ion when the trial court ’ s s ummary judgm ent order did not appear to be final

. Both parties respo nd ed that the trial court ’ s sum mary judgment beca me final and appealable a fter M ichael nonsuited his applicat ion to p robate Wynell ’ s 2 010 will
a s a mun iment of title

. Micha el stated in his con test to Jan ’ s appointment and his application to probate the will as a muniment of title that Wynell had prope rt y
— c ash,4

support of Jan as execu t or of Wynell ’ s estate , Donna and Paul a rais ed two grounds : undue influence by Michael and Wyne ll ’ s lack of testamentary capacity with regard to
the 2008 an d 201 0 wills

. 3
Michael filed a tr aditio nal and no

- ev idence motion for partial summ ary judgment

. In the tradit ional portion of his mot ion, he argued that the 2007 will was
revoked by the 2008 and 2010 wills , both of which , he stated , were consistent with Wynell ’ s d esires when made, affirmat ivel y negating an essential e lement of u ndue
influence

. 4 In the no

- evidence portion of his m otio n, he argued that there was no

household items, clothing, and person al effects

— wort h less t han $10,000 at the time of her dea th.

3 Te st amentary capacity requires that the testator, at the time the will is executed, must have sufficient mental ability to understand she is mak ing a will, the effect of making th e will, and the genera l nature and e xtent of her property ; to know her next of ki n and the natural objects of he r bounty and the claims upon them ; and to have sufficient memory to collect in her mind the elements of the b usi ness transacted and hold them lo ng enough to per ceive their ob vious relat ion to each other and form a reasonable judgment abou t them

. Estate of Luce , No. 02

- 17

- 00097

- CV, 2018 WL 5993577, at *8 (Tex. App.

— Fort Worth Nov. 15, 2018, no pet.) (mem. op.) ; T iek en v. Midwestern State Univ. , 91 2 S.W.2d 878, 88 2 (Tex . App.

— Fort Wo rth 1995, no writ)

.
4 A claim of un due influen ce requires proving the existen ce and exertion of an influence; th at the influence operated to subvert or o verpower the testator ’ s mind when ex ecuting a document; and that t he tes tator would not have e xecuted th e document but for the influence. Rot hermel v. D uncan , 369 S.W.2d 917, 922 (Tex . 1963)

. Influence is not “ undue ” unless the t estator ’ s free agency is dest royed and a testament produced th at expresses the will of the one ex erting the i nfluence. Id. (expl aining that undue influence is separat e and disti nct from testamentary incapacit y ; “while testamentary incapacity i mplies the want of intelligent mental pow er, undue influence im plies the e xis tence of a testamentary capacity subjected t o an d cont rolled by a5

evidence to support each of the elements of undue influence with regard to the 20 08
and 2010 wills.
In the ir response to M ichael ’ s motion, Jan, Don na, and Paula reminded the t r ial
court that based on Michael ’ s fid ucia ry relationship with his mother, he bore the burden of proof to show the absence of undue influence with regard to the 2008 and
2010 wills , pre ve nting a no

- evidence summ ary judgment in his favor

. T hey directed

t he trial court to evidence that Micha el had been W yn ell ’ s attorney in fact , ha d taken over Wynell ’ s financ ial affairs after Fred died , and had drained what assets were left
after various di st ributions to all four children until

— in 2016

— Wynell had less tha n $10,000 in her estate; that when Wyn e ll ’ s probate atto rn ey had declined involvement in drafting the 2008 will, Michael had engaged Barley to do it ; and that when Wynell
executed the 2008 w

ill, she was ta king larg e amounts of medication on a daily b asis
and was u l timately diagnosed with deme ntia and Alzheimer ’ s , calli ng into question her testamentary capacity to execute both the 2008 and 2010 will s . The t rial court gr anted summary judgment for Michael on the tradi tional ground with regard t o the 2007 will ’ s revocation by the 20 08 will and on the n o

evidence ground regarding undue influence

. In its order, t h e trial court made no ruling about which of the remain ing will s would be admitted to probate and referred

to the 2008 will as “ t h e purporte d will dated July 24, 2008. ” The order also contained
d omina[ n ]t influence or power ”). Th e burden of proving undue influence is gen erally upon t he person contesting the document ’ s execution

. Id.6

a Mother Hubbard clause, stating that “ [a]ll re lief sought by Michael Kornegay in his
First Amended Motion f

or Partial Summary Judgment filed June 5, 2018 not e xpressly
gr anted herei n is DENIED. ” The trial court then si gn ed an order severing the claims disposed of by summary judgment into a new cause number

. 5
I I I. Discus sion
In their first an d third issues , Jan, Donna, and Paula argu e that the trial court erred by gr anti ng the no

- evidence portion of Michae l ’ s motion because Michael was the party with the burden of proof and by granting the traditional port ion of Michael ’ s motion because he did not conclusi vely prove that Wynell had testamentary capacity
when she ex e cu ted the 2008 will

. 6

5 I n his ap pellee ’ s brief, Michael contends tha t his stepsi sters fail ed to prop erly invoke our jurisd ic tion bec ause although the trial court severed the matters decided by summary judgment in to a new cause number , his stepsisters fi led their n otice of appeal in the o riginal cause number. We disagree

. See Blankenshi p v. Robins , 878 S.W.2 d 138, 139 (Tex. 1994) (per curiam) (providing that “ the decisions of th e cour ts of appeals [should] tu rn on substance rather than procedural technicality ” ) ; George v. Compass Ban k , No. 04

- 15

- 00676

- CV, 2016 WL 71 19053, at *4 (Tex. App.

— San Antonio Dec. 7, 2016, p et. de ni ed) (mem . op
. on reh ’ g ) ( “ Even though the notice of appeal bears t he ori ginal cause nu mber, we ho ld the notice of appea l was a bona fide attempt to invoke our jurisdiction, and we have jurisdiction to con si der this appeal. ”) ; Butler v. Whitt

en , No. 02

- 13

- 00306

- CV , 201 4 WL 24232, at *2 (Tex. App.

— Fort Worth Jan. 2, 2014, no pet .) (mem. op

. on reh ’ g ) ( “ If there is no suggestion of confusi on regarding which judgment the appellant appeals , the misnumbering [of the trial court cause number] should not de fe at the appellate c ourt ’ s jurisdi ction. ”).

6 Because Jan, Donna, and P aula ’ s first and t hird issues are dispositi ve, we do not reach their second an d fourt h i ssues. See Tex. R. App. P. 47. 1.7

A. Bur de n of Proo f in No

- Evidence Summary Judgment Context With regard to a no

- evidence motion for summar y judgment, a fter an adequate
time fo r discovery, t he party without the burden of proof may move for summary judgm ent on the gr oun d that no evidence su pport s an essential element of the
nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i) ; see Burges v. Mosley , 304 S.W.3d 623, 628 (Tex. App

. —

Tyler 2010, no pet.) (holding that because defendant had burden of pr oof on affirmativ e def ense , she could n ot p roperly move fo r no

- evidence

summa ry judgment on that ground) ; Reyes v. Saenz , 269 S.W.3d 675, 676

– 77 (Te x. App.

— San Antonio 2008, no pet.) (op. on reh’g) ( holding that trial court erred by granting no

- evidence summary judgment to p lai ntif fs on their own c laim); see also Estate of Danford

, 550 S.W.3d 275, 282 (Tex. App.

— Houston [14 th Dist.] 2018, no pet.) ; Ho n. David Hittner & Lynne Liberato, Summary Judgment s in Texas: State &
Federal Practice , 60 S. T ex. L. Rev. 1, 18 (2019) (“If a pa rty has the burden of proof on claims or defenses, it may not properly urge a no

- evidence summary judgment to challenge those claims or defenses.”). In their first issue, Jan, Donna, and Paula argue that beca use Michael was an undisputed fiduciary , h e bor e the burden of rebutting the presumption of unfairness, making improper the trial court ’ s grant of his no

- evidence

m ot io n on undue influence

. 7

7 Jan, Donna, and P aula also a rgue in their first issue that th e trial court erred by g ranting Mi chael ’ s no

- e vidence motion on testamentary capaci ty, bu t the trial court did not grant Michael ’ s no

- evidence motion on that ground

. Accordingly, w e overrule this portion of thei r first issue.8

The person cha llenging the validity of an instrument generally bears the burden of provi ng the elements of undu e influence by a preponderance of the evidence

. Quiroga v. Mannelli

, No. 01

- 09

- 00315

- CV, 2011 WL 944399, at *5 (Tex. App.

— Houston [1st Dist.] Mar. 17, 2011 , n o pet.) (mem. op.) ; s ee Ro thermel , 369 S.W.2d at 922 ( “ The burden of provi n g undue influence is u pon the party contesting [the will ’ s]
execution. ” )

. This general rule applies to transfers from pare nt to child. Quiroga , 2011 WL 944399, at *5

. Such transf ers , standing alone, do not give rise to a presumption of undue influence, leaving the burden wit h the part y challenging the transaction ’ s validity

. S e e id. 8 This is because “ nothing is more common or natural than for a

8 In Quiroga , the dec edent ’ s ex

- wife challe nged t he decedent ’ s having replaced her on a joint bank acc ount with his ad ult daughter, w ho the ex

- wife alleged had
ex ercised undue influence in accomplishing th e tr ansaction. 2011 WL 944399, at * 1

. Our sister court, in the mem oran dum opin ion authored b y Just ice Jane Bland, now a justice on the Supreme Court of Texas, held tha t the burden to prove no undue infl uence under the facts of the case did not shift to the d ecedent ’ s daughter , relying
on G a tes v. Asher

, 280 S.W.2d 247, 250 (

Tex. 195 5)

. Id. at *5

. In Gates , the respondent ha d comp lained in the intermedi ate court about the trial court ’ s refusal to submit a n issue on the question of undue influence exerted by the petitioner over her mother i n procuring a deed ’ s execution. 280 S.W.2d at 250. The s upreme court stated that the intermediate court had properl y overruled that complaint beca use a deed from a parent to a child does not give r ise to the presumption of undue influence and because the respondents, who had retained the b urden of proof on the issue, did not refer to any evidence other than the mother ’ s frai l, enfeebl ed condition an d the fact that the petitioner had lived with her off and on for a number of years. Id. The court further n oted that “ the pres umption of fraud or undu e influence un der ce rtain circumstances where the grantee occu pies a conf idential or fidu ciary relat

ions hip to the grantor ” was not a rule that applied “ to the transaction between a mother and daughter. ” Id. ; s e e also Saufley v. Jackson , 16 Tex. 5 79, 587 ( 1856) ( holdin g that , as to deed from mother to daugh ter, “ every presumption is in favor of the validity and fairness of the deed ” and that “ to set as ide the deed so made by the mothe r, it must be proven without the ai d of presumption, that she had been fr audulently pra cticed9

[parent] to bestow gi fts upon his [or her] children. ” Hager v. Hager , 127 S.W.2d 234, 238 (Tex. App.

— Eastlan d 1939, no writ) ; see Beville v. Jones , 11 S.W. 1128, 1130 ( Tex. 1889) ( explaining that “ [

i ] n the case of a gift from a child to the parent [,] undue influence may be inferred from t he relation itself; but never where the gift is from the parent to the child, and no suspicion w h atever attaches to the latter , ” but adding that

“ there is no doubt that upon proof of the actual exercise of undue influence it may be
set aside ” ). However, in c ases involving fiduciary relat ion ships, a presumption of undue
inf luence may arise, requiring t h e person r eceiving the benefit to prove the fairness of
the transaction

. See Danford , 550 S.W.3d at 281

– 82 ; Quiroga , 2011 WL 944399, at *5 ; Price v . Taliafer

ro , 254 S.W.2d 157, 163 (Tex. App.

— Fort Worth 1952, writ ref ’ d n.r.e.) ( noting that when “ t he gro u nd of

. . . undue influence is ple a d [ed] , as in this case, against the devisee who occupies a confidential or fiduciary rel ation to the maker of
the inst rument, th e burden rests on the devisee to show the fairness of the t ransaction by appropriate evidenc e , ” b u t hol ding that no presumption of unfairness arises merely

upon by some pers on or persons, for the purpose of pr ocuring the dee d, and that it was so procured ”). However, there was no indi cation in Gates or Saufley of whe ther the child had also been the pa rent ’ s attorney in fa ct. Cf. Millican v. Millican , 24 Tex

. 426, 451 ( 1859) ( stating that the parties ’ relat ionship, in which t he defendant

- son a ttended to the t ransaction of his mother ’ s busine ss i n the probate court as administ rat rix of her dece ase d husband ’ s estate and “ had the superintende nce of her out o f do or affairs generally ” could “ scarcely be thought a case of agency, of a character which awakens the jea lous scrutiny of a court of equit y, into the dealings of the parties ” ).10

from the fact that the deceased and devise e were siblings ). And “ a power of attorney

crea tes an ag e ncy relat

ionship, which is a fiduciary relationship as a matter of law. ”
Miller v. Lucas , N o . 02

- 13

- 00298

- CV , 2015 WL 24 37887 , at *4 (Tex. Ap p.

— Fort Worth 2015, pe t. denied) (mem. op.) (noting that a fiduciary owes his principal a high duty of g ood faith , fair d ealing, honest performance, and strict accountability) ; see Bombardier Aerospace Corp

. v. S PEP Aircraf

t Holdings, LLC

, 572 S.W.3d 213, 231 (Tex. 2019) ( “ An agreement creating a power of attorney creates a fiduciary relat ionship. ” ) ; Nat ’ l P lan Adm ’ r s , Inc. v. Nat ’

l Health Ins. Co. , 235 S.W.3d 695, 700 (Tex. 2007) (noting that an agency rela t

ions h ip imposes certain fi du ciary duties on the p arties) ; Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 200 (Tex. 2002) ( “ Under the common law of

m ost juris d ictions, including Te xas, agency is also a special relationship that gives rise
to a fiducia r y du t

y. ” ). Thus, an attorney in fact , as a fiduciary , carries the burden of proof t o overcome the presumption of unfairness that arises in self

- dealing
transactio ns. See Danford

, 550 S.W.3d at 28 5 ; see also Tex

. Bank & Tr. Co. v. Moore , 595 S.W.2d 502, 5 09 (

T ex. 1980) ( stating that a fiduciary rela t ionship puts on a profitin g fiduciary “ the burden of showing the fairness of the transactions ” ) ; Healey v. Healey , 52 9 S.W.3d 124, 135 (Tex. App

. — Tyler 2017 , pet. denied) ( “ A fiduciary may not use his position to s e lf

- deal. ” ). Michael argued to the trial court , see infra n.1 4 , and argues on appeal that
because Danford

, a 2018 opinion, was decided after the effect ive da te of the
amendment to Estates Code Section 751.101 , it does not apply here. However, the11

l a w in effect at the time Danford w as decided was the same law that w as in effect in the
instant case , and the facts here are quite similar to th os e present in Danford

. In Danford , the deceased executed a will naming Robert Stawarc zik 9 as the executo r and

s ole beneficiary of her estate on the same day in 2010 that she ex ecuted a general
power o f attorney in his favor . 550 S.W.3d at 278

. All of the se documents were

ex ecuted at the deceased ’ s home in front of witnesses w ho m Stawarczik had brought
and who h a d not previously me t her

. Id. Her nephews opposed the will ’s admission to probate, arguing th at she had lacked testamentary capacity and that Staw ar c zik had
exercised undue influence o ver their aunt. Id. at 27 8

– 79

. Stawarczik filed a traditional and n o

- e vi dence motion for summary judgment , arguing in his no

- evidence motion that there was no evidence o f the lack of testamentary capacity or undue i nflue nce . Id. The ne phe ws responded by atta ching a copy of the general power of attorney appointing Stawar c zik as their a unt ’s agent , i d.
at 279 , and ar gued that this e vidence of a fiduciary relationship shifted the bu rden of proving lack of undue in flue nce t o Stawarczik. Id. at 285. The court agreed, holding
that when the ne phews presented some evidence of a fid uciary relations hip

— i.e.,
S tawarczik ’s appointment as attorney

- in

- fact on the same day a s the will ’s execution

—

9 The court does not make clear in Danford who Stawarc zik was to the deceas ed , ot her than that he was not her husband or child. 550 S.W.3d at 278 n.2

.12

t his rais e d a presumption of und ue in fluence sufficient to defeat Stawarczik ’s no

evidence motion. 10 Id. a t 28 5

– 86.
Michael contends that i n Da nford , the Fourteenth Court impr operly interpreted the unfairness presumption applicable to a fiduciary in self

- dealing transa ctions and
relies on t he analys is of the B eaumont Court in Fielding v. Tu llos to contend that this a rebuttable presumption. No. 09

- 17

- 00203

- CV, 2018 WL 41 38971 , at *7 (Te x. App.

— B eaumont Aug

. 20, 2018, no pet.) (mem. op.)

. In Field ing , the es tate ’ s i ndepe ndent
administrator ( the deceased ’ s niece ) cha llenged the deceased ’ s having chang ed the beneficiary desi gnation on his acco u nts to his caretaker , complaining that a fiduciary relationship had e xi sted between the deceased and the caretaker that ga ve ri se to a presumption of undue influence

. Id. at *1 , * 5

. The caretaker moved for summary judgment on undue influence

. 11 I d

. at * 2

– 3. In her r esponse, the a dministrator point ed out that the caretaker had signed one of the account agreements as “ agent ”
and t hat the deceased had executed a power of attorney for his accou nts naming the
caretaker as h is ag ent. Id. at *3.

10 The court also held , among oth er things, that the trial court had erred to the extent it had granted Stawarc zik ’s no

- ev idence m otion on the issue of t estamentary c apacity be caus e St aw arczik had the burden on that issue. Id. at 282.

11 The Fielding cou rt construed the caretaker’s motio ns as asserting only traditional gro unds for summary jud gment. 2018 WL 4138971 , at *5. Thus, we question its applicability to the i ssue before us regar ding burden

- shifting on a no

evidence summary judgment.13

While the B e aumont court in Fieldin g did hold that the presumption is a rebuttable presumption that is extinguished with the off ering of contrary evidence,

not one that shifted the ultimate burden of proof of unf airness , i d

. at *7 , none of the
cases cited in Fi

elding regardin g this burden

- shifting proposition involv ed undue influence in a fiduciary self

- dealing situation. See id. (citing Hot Head, Inc. v. Safehouse Habitats (Scot

. ), Ltd. , 333 S.W.3d 719, 730 (Tex. App.

— Hou ston [ 1st Dist.] 2010, pet. denied) ( in volvin g trademark i nfringement); Long v. Long , 234 S.W.3d 34, 37 (Tex. App.

— El Paso 2003, pet. denied) ( involving the chara cte rization of ma rital property on divorce); All Am. Builders, Inc. v. All Am. Siding, Inc. , 991 S.W.2 d 484, 489 (Tex.
A pp.

— Fort Wort h 1999 , no pet.) ( involving trademark infringement and citing Gen. Motors Co. v. Saenz

, 873 S.W.2d 353, 359 (Tex. 1983) ( in vo lving products liability) ) ; Tex. Nat. Res. Conservation Comm ’ n v. McDill

, 914 S.W.2d 718, 7 24 (Tex. App.

— Austin
1996 , no writ) (

inv olving an employme nt dispute); Garza v. City of Mission , 684 S.W.2d 148, 152 (Tex. App.

— Corpus Christi 1984, writ dism ’ d w. o.j.) ( inv olving employment termination) )

. Accordingly, we are unpersuaded by Michael ’ s argument. To the contrary, Danfo rd and case law fr o m the supreme court and other courts of appeal s reflect that in situations involving sel f

- dealing in fiduciary or co nfident ial
relatio nships, a presumption of unfairness arises that shifts both the burden of production and the burden of p ersuasion t o th e f iduci ary seeking to uphold the
transaction. See Moore , 595 S.W.2d at 509 ; see als o Stephens C ty

. Museum, Inc. v. Sw enson , 517 S.W.2d 257, 260 (Tex. 1974) (observing that when a fiduciary relationship e xisted14

between sisters and their bro ther, who w as ope r ating under their power of attorney
and wh o was also a dir ector of the museum to w hich the sisters had made a
contri bution th at they later sought to set aside, “ [u] nder such conditions, equity indulges the presumption of unfairness and invali dity, a nd req u ires proo f at the hand of the p arty claiming validity and benefits of the transaction that it is fair and
reasonable ” ); Archer v. Griffith , 390 S.W.2d 735, 740 (Tex. 1964) (noting that after

res pondent “ established that the conveyance was exe cuted a nd del i vered dur ing the
existence of the attorney

- client relationship, the burden was on peti tioner to show that his acquis ition of the interest conveyed by the deed was fair, honest [,] and equitable ” ); Int ’

l Bankers Life Ins. Co. v. Holloway , 368 S.W. 2d 5 67, 57 6 (Tex. 1963) ( “ Contracts between a corporation and its officers and directors are not voi d but are
voidable for unfa irness and fraud with the burden upon the fiduciary of proving
fairness. ” ) ; McAuley v. Flentge , No. 06

- 15

- 00051

- CV, 2016 WL 31826 67 , at *7 ( Tex. App.

— Te xarka na June 8, 2016, pet. denied) (mem. op.) (citing Swe nson , 517 S.W.2d at 260; Archer

, 390 S.W. 2d at 740); Jordan v. Lyles , 45 5 S.W.3d 785, 792 (Tex. App.

— Tyler
20 15, no pet.) (op. on reh ’ g) ( “ Even in the case of a gift between parties with a fi duci ary relationship, e quity indulges the presumption of unfairness and invalidity, and requires pro of at the hand of the party claiming validity of the transaction that it
is fair and reasona ble

. ” ). 12 Thus, we decline Michael ’ s i nvitation to follow F i eldi ng .

12 While Michae l contends that he produced eviden ce of fairness that , under his F iel ding

- based rebu ttable

- p resumption theory, would have o vercome the presumption15

I t is undisputed that Michael held his mother ’ s p ower of a ttorney w hen he assisted in securing the 2008 w ill , which enhan ced his share of the esta te 13 and u pon which he relies in attempting to show th at she revoked the 2007 will

. As the holder o f
his mot her ’ s po wer of attorney, Michae l was her fiduciary

. See Bombardier Aerospace Corp

. , LLC

, 572 S.W.3d at 231 ; L

ucas , 2015 WL 2437887, at *4

. Thu s, Mi chael ’ s fiduciary status shifted the burden to him to overcome the resulting presumption o f
unfair n ess. Se e Moore , 595 S.W.2d at 509

. B e cause the burden of proof shifted to
Michael , 14 t he trial court was preclud ed fr om granting his no

- eviden ce motion on that
basis. Se e Tex. R. Civ. P. 166a(i)

. We sustain Jan , Donna, and Paula ’ s first issue a s to und u e influe nce .

of unfair ness , his e vidence wou ld h ave r aised only a fact issue for the tri er of fact , making summa ry judgmen t inappropriate

. See Ginther v. Taub , 570 S. W.2d 516, 525

– 26 (Tex. A pp.

—

Waco 1978, writ ref

’ d n.r.e.)

.
13 The 2008 will del eted Donna and Paula as beneficiaries

. Mi ch a el also used Wyn ell ’ s power of attorney to make arrangements for her personal care, her financ e s, her estat e planning, and the fami ly ranch, and after Wynell gave him sig natory authority over her bank accounts, he made transfers to himself and to other ac counts, including hi s offshore b ank account.

14 Althoug h Michael argued in the trial cour t that the 2017 Durable Power of Attorney Act made “ case authority cited by [his stepsi sters] arisi ng under the former sta t u te ” (fo rmer Texas Probate Code § 489B (a) , n ow Estates Code Sect ion 751.101) no longer ap plicable , he conc edes on appeal t hat the st atutory amendment “ ap plies only to [powers of attor ney] ex ecuted after the effective date ” of Septe mbe r 1, 2017. And altho u gh Jan , Donna, and Paula co ntend that the 2 017 Act, if applicab le , would impose on Michael the duty to preserve the princi pal ’ s esta te plan , in light of our disposition of this is sue, we need not reach this argument. See Te x. R. App. P. 47.1.16

B. Traditio nal Sum mary Judgment Requires Conclusive Proof In their third issue, Jan , Donna, and Paula a rgue th at Michael did not
conclusi vely p rove that Wynell had testamentary capacity on the date that she
executed the 2008 Will an d that t herefore the trial court ’ s grant of tra ditional summary jud gment was erroneous. An applicant fo r the probate of a wil l must prove among other facts tha t the

testator ha d testamentary capacity at the time of the will’s execution and that the

testa tor did not revo ke the will. Tex. Est. Code An n. § 256.152 ; Ashley v. Usher , 384
S.W.2d 696, 698 (Tex. 1964) (construing prede c e ssor to E states C ode S e ction 256 .152 and stating that “[t]he burden of establishing that a will has not been revoked is placed by this statute on the propon ent of the will so ught to be probated”). A written will

ma y be revoked by “ a subsequent will, cod i c il, or declaration in w riting th at is
executed with like formalities .” Tex. Est. Code Ann. § 253.002. A party seeking

revocat ion by a s ubsequ ent will must prove “that the s ubsequent instrument w as

ex ecuted at a time when the [maker] w a s of sound mind a nd disposing memory.”
Harkins v. Crews

, 907 S.W.2d 51, 58 (Tex. App.

— San Antonio 1995, writ denied)

. Micha el sought traditional summar y judgm ent ask ing the trial court to deny the 2007 Will’s admission to probate because the 2008 Will revoked the 2007 Wil l. As is pertinent to th is appeal , it wa s Michael ’s burden to prove as a matter of law (1) that Wynell h ad testamentary capacity on Jul y 24 , 20 0 8

— the date she signed the 2008 Will, (2) that the will was executed with the requisite formalities, and (3) tha t the will17

revoked all pr ior wills

. See Tex . Est. Code Ann. § 256.152 ; Harkins , 907 S.W.2d at 58 ;

s ee a lso Tex. R. Civ. P. 166a( c); Cat h ey v. Bo oth , 900 S.W.2d 339, 341 (Tex. 1995) ( “ To prevail on a motion for summary judgment, a movant must establish tha t there is no
ge nuine iss ue of mat erial fact and that the movant is entitled to judgment as a matter
of law. ” ). To prevail o n a t raditio n al motio n for su mmary judgment, a movan t with the
bu r den of proof must provide conclusive proof as to each element on w hich he bear s the burden

. Sci

. S pectrum, Inc. v. Martinez

, 941 S. W.2d 910, 911 (Tex. 199 7). Only
when the movant produces conc lusive e v idence e stablish ing the right t o summa ry judgment d o es the burden shift to the nonmovant to come forward with competent controverting evidenc e that rais es a fact issue. Cha vez v. Kan

. City S

. R y . Co. , 520
S. W. 3 d 898, 899

– 900 (Tex. 2017 ) (per curi am) ( “ At trial, a presumption operates to estab lish a fact until rebutted [] but not in summary judgment proceedings. ” )

. If the

m ovant does not meet the b urden of p roducing conclusive proof, then the burden
never shifts to the nonm ovant to present any evide nce , or to respo nd , at all. See i d . at
90 0

– 01

. As the supreme court explained i n City of Keller v. Wilson , there are several types
of co nclusive evidenc e , which may or may not be undisputed evidence

. 1 68 S.W.3d at
815 , 816 (Tex. 2005) ( “ Undisputed evidence and c onclusive evid ence are not the

same

— undisputed evidence may or may not be conclusive, and con clusive evidence may or may not be un disputed. ” )

. One type of undisputed e vidence that rises to the18

level of conclusive proof is eviden ce that a party admits is t rue. Id. at 8 15. For

ex ample , “a claimant’s admission that he w a s aware of a dangerou s premises
condition is conclusive evidence he n eeded no warning a bo ut it.” Id. (citing Wal

- Mart Stores, Inc. v. Miller

, 102 S.W.3d 70 6, 709

– 10 (Tex. 2 003) (per curiam ) )

. Another type of conclusi ve proof is evidence that allo ws on l y o ne logical
inferen ce , even if disputed

. Id. at 814 , 816 (noting , for ex ample, that in Murdock v.
M urdock , 811 S.W.2d 557, 560 (Tex. 1991), although a child ’ s m other d irectly disputed
th a t she h ad engaged in conjugal relat ions with anyone else during the relevant time , the blo od t est conc lusively proved that the defendant was not the child ’ s father). “By
defin ition, [evidence that allows only one logical inference] can be viewed in only o n e li ght, and reasonab le jurors can reach only one conclusion from it.” I d

. at 81 4. Thus,
for this evidence to rise t o th e level of conclusi ve proof , it must be of the type t hat reasonable jurors could not disbelieve. Id . at 815. Mos t examples of undis p uted
evidenc e tha t be come conc lusive include “physical facts that cannot be denie d.” Id

. (cit ing C ty

. of Bexar v

. S a nti

ko s , 144 S.W.3d 455, 460

– 61 (Tex. 2004) (holding that

u ndisputed evidence that access remained along 90 % of a tract’ s frontage conclusi v ely disprove d an impa ired

- acce ss claim) )

. While “ [ i ]t is imposs ib le to define pr ecisely
when undisputed evidence be c omes conclusive,” the te st is whether reasonable jurors
are free to disbelieve th e evidence. I d. a t 81 5

– 16. Even if undisputed, evidence is not conclusive if reasonable jurors could differ in their con clusions

. Id

.19

To discharge his summary judgment burden, Michael offered four witnesses

— Donald Barley , Sandra Ba rley , Mar ti Lut trall, 15 and Li nda Solom on

— w ho each

atte sted to Wyn ell ’ s ca paci ty at the time the 2008 W ill wa s e xe cuted

. However,
because a fact finder was not bound to believe Mi c hael ’ s four witn esses , his proof does
not fall within th e categ ory of conclusive p roof tha t allows only one logical inference

. Nor doe s any admission as to Wyne ll ’ s t estamentary capacity appear in this record

. B ecause Michael failed to present c onclusiv e proof of Wynell ’ s test amen tary capacity,
he fell short of the legal standard that wou ld entitle him to a traditional summary judgment , and the burden nev er sh ifted to Jan , Donna, and Paul a t o p roduc e any evidence at all

. Accordingly, the trial court err ed when it granted Michael ’ s motion for traditional summary judgment, and we sustain J a n, Donna, and Paula ’ s third is sue. I V . Conclu sion Having sustaine d p art of Jan , Donna, and Paula ’ s f irs t iss ue and having

sus tained their third issue, we reverse the trial cour t ’ s judgment and remand this case to the trial court for further proceedin gs. See Tex . R. App. P. 43 .2 (d).

/s / Bonnie Sudde rth Bonnie Sudderth Chief Just ice
Deliv ered: December 19, 2019

15 Sandra and Marti witnessed the 2008 wi ll.