In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-18-00356-CV

___________________________

On Appeal from the County Court

Hood County, Texas

Trial Court No. P08257

Before Sudderth, C.J.; Gabriel and Wallach, JJ.

Memorandum Opinion by Chief Justice Sudderth

Concurring and Dissenting Memorandum Opinion by Justice Wallach

IN THE ESTATE OF WYNELL N. KLUTTS, DECEASED
2

MEMORANDUM OPINION

I. Introduction

In four issues in this dueling-wills case, Appellants Jan Margaret McKee, 

Donna Vick, and Paula Fuqua appeal the trial court’s summary judgment for their 

stepbrother, Appellee Michael O. Kornegay. We reverse and remand.

II. Factual and Procedural Background

Fred and Wynell Klutts married in 1959; Michael was Wynell’s son from a prior 

marriage, and Jan, Donna, and Paula were Fred’s daughters from a prior marriage. 

Fred died in August 2007. Wynell died nine years later. 

Between August 2007 and August 2016, Wynell executed four wills—two in 

2007, one in 2008, and one in 2010.

In the first two wills, Wynell devised everything equally to the four children and

appointed Michael and Jan as co-executors. In 2007, she also appointed Michael and 

Jan as her agents under a medical power of attorney and as attorneys in fact in a 

durable general power of attorney instrument that required them to act jointly or to 

agree in writing to exercise such authority separately. And Wynell executed a 

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

as her guardian in the event that she someday needed one. From December 2007 to

April 2008, Wynell transferred assets worth over $6.4 million—approximately $1.6

million each—to Jan, Donna, Paula, and Michael. 
3

Wynell executed a third will on July 24, 2008, in which she left everything to 

Michael and Jan in equal shares and stated that she had “deliberately made no 

provision herein for the benefit of [her] stepdaughters[] Donna . . . and Paula . . ., for 

good and sufficient reasons which [she did] not care to enumerate herein.”

1 She 

appointed Michael as her executor, with Jan to be her executor only if Michael

predeceased Wynell, resigned, or became legally incompetent to act as executor. 

Almost two years later, in April 2010, Wynell executed a statutory durable 

power of attorney appointing Michael as her sole attorney in fact. Six months after 

that, in October 2010, she executed another will, in which she devised 78% of a 

limited partnership to Michael, the remaining 22% to Jan, and everything else to 

Michael. In the 2010 will, she named Michael as her executor and Donald L. Barley, 

who prepared both the 2008 and 2010 wills, as the successor executor. 

After Wynell died in August 2016, Jan, Donna, and Paula sought to admit the

2007 will to probate. Michael challenged it, arguing that Wynell’s 2008 and 2010 wills

had revoked the 2007 will, and he sought to admit Wynell’s 2010 will to probate.2In 

 

1When Wynell’s previous attorney noted his concern about Wynell’s expressed

desire to disinherit Paula and Donna, Michael engaged a different attorney to draft the 

2008 will. 

2Prior to this case’s submission, we asked the parties to explain how this court 

had jurisdiction when the trial court’s summary judgment order did not appear to be 

final. Both parties responded that the trial court’s summary judgment became final 

and appealable after Michael nonsuited his application to probate Wynell’s 2010 will

as a muniment of title. Michael stated in his contest to Jan’s appointment and his 

application to probate the will as a muniment of title that Wynell had property—cash,
4

support of Jan as executor of Wynell’s estate, Donna and Paula raised two grounds: 

undue influence by Michael and Wynell’s lack of testamentary capacity with regard to 

the 2008 and 2010 wills.

3

Michael filed a traditional and no-evidence motion for partial summary 

judgment. In the traditional portion of his motion, he argued that the 2007 will was 

revoked by the 2008 and 2010 wills, both of which, he stated, were consistent with 

Wynell’s desires when made, affirmatively negating an essential element of undue 

influence.

4

In the no-evidence portion of his motion, he argued that there was no 

 

household items, clothing, and personal effects—worth less than $10,000 at the time 

of her death. 

3Testamentary capacity requires that the testator, at the time the will is 

executed, must have sufficient mental ability to understand she is making a will, the 

effect of making the will, and the general nature and extent of her property; to know 

her next of kin and the natural objects of her bounty and the claims upon them; and 

to have sufficient memory to collect in her mind the elements of the business 

transacted and hold them long enough to perceive their obvious relation to each other 

and form a reasonable judgment about 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.);

Tieken v. Midwestern State Univ., 912 S.W.2d 878, 882 (Tex. App.—Fort Worth 1995, no 

writ).

4A claim of undue influence requires proving the existence and exertion of an 

influence; that the influence operated to subvert or overpower the testator’s mind 

when executing a document; and that the testator would not have executed the 

document but for the influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963). 

Influence is not “undue” unless the testator’s free agency is destroyed and a testament 

produced that expresses the will of the one exerting the influence. Id. (explaining that 

undue influence is separate and distinct from testamentary incapacity; “while 

testamentary incapacity implies the want of intelligent mental power, undue influence 

implies the existence of a testamentary capacity subjected to and controlled by a 
5

evidence to support each of the elements of undue influence with regard to the 2008 

and 2010 wills. 

In their response to Michael’s motion, Jan, Donna, and Paula reminded the trial 

court that based on Michael’s fiduciary 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, preventing a no-evidence summary judgment in his favor. They directed 

the trial court to evidence that Michael had been Wynell’s attorney in fact, had taken

over Wynell’s financial affairs after Fred died, and had drained what assets were left 

after various distributions to all four children until—in 2016—Wynell had less than

$10,000 in her estate; that when Wynell’s probate attorney had declined involvement 

in drafting the 2008 will, Michael had engaged Barley to do it; and that when Wynell 

executed the 2008 will, she was taking large amounts of medication on a daily basis

and was ultimately diagnosed with dementia and Alzheimer’s, calling into question her 

testamentary capacity to execute both the 2008 and 2010 wills.

The trial court granted summary judgment for Michael on the traditional 

ground with regard to the 2007 will’s revocation by the 2008 will and on the noevidence ground regarding undue influence. In its order, the trial court made no 

ruling about which of the remaining wills would be admitted to probate and referred 

to the 2008 will as “the purported will dated July 24, 2008.” The order also contained 

 

domina[n]t influence or power”). The burden of proving undue influence is generally 

upon the person contesting the document’s execution. Id.
6

a Mother Hubbard clause, stating that “[a]ll relief sought by Michael Kornegay in his 

First Amended Motion for Partial Summary Judgment filed June 5, 2018 not expressly 

granted herein is DENIED.” The trial court then signed an order severing the claims 

disposed of by summary judgment into a new cause number.

5

III. Discussion

In their first and third issues, Jan, Donna, and Paula argue that the trial court 

erred by granting the no-evidence portion of Michael’s motion because Michael was 

the party with the burden of proof and by granting the traditional portion of Michael’s 

motion because he did not conclusively prove that Wynell had testamentary capacity 

when she executed the 2008 will.

6

 

5

In his appellee’s brief, Michael contends that his stepsisters failed to properly 

invoke our jurisdiction because although the trial court severed the matters decided by 

summary judgment into a new cause number, his stepsisters filed their notice of 

appeal in the original cause number. We disagree. See Blankenship v. Robins, 878 

S.W.2d 138, 139 (Tex. 1994) (per curiam) (providing that “the decisions of the courts 

of appeals [should] turn on substance rather than procedural technicality”); George v. 

Compass Bank, No. 04-15-00676-CV, 2016 WL 7119053, at *4 (Tex. App.—San 

Antonio Dec. 7, 2016, pet. denied) (mem. op. on reh’g) (“Even though the notice of 

appeal bears the original cause number, we hold the notice of appeal was a bona fide 

attempt to invoke our jurisdiction, and we have jurisdiction to consider this appeal.”); 

Butler v. Whitten, No. 02-13-00306-CV, 2014 WL 24232, at *2 (Tex. App.—Fort Worth 

Jan. 2, 2014, no pet.) (mem. op. on reh’g) (“If there is no suggestion of confusion 

regarding which judgment the appellant appeals, the misnumbering [of the trial court

cause number] should not defeat the appellate court’s jurisdiction.”).

6Because Jan, Donna, and Paula’s first and third issues are dispositive, we do 

not reach their second and fourth issues. See Tex. R. App. P. 47.1.
7

A. Burden of Proof in No-Evidence Summary Judgment Context

With regard to a no-evidence motion for summary judgment, after an adequate 

time for discovery, the party without the burden of proof may move for summary 

judgment on the ground that no evidence supports 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 proof on affirmative defense, she could not properly move for no-evidence 

summary judgment on that ground); Reyes v. Saenz, 269 S.W.3d 675, 676–77 (Tex. 

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

granting no-evidence summary judgment to plaintiffs on their own claim); see also

Estate of Danford, 550 S.W.3d 275, 282 (Tex. App.—Houston [14th Dist.] 2018, no 

pet.); Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas: State &

Federal Practice, 60 S. Tex. L. Rev. 1, 18 (2019) (“If a party 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 because Michael was an undisputed fiduciary, he bore the burden of rebutting the 

presumption of unfairness, making improper the trial court’s grant of his no-evidence

motion on undue influence.

7

 

7

Jan, Donna, and Paula also argue in their first issue that the trial court erred by 

granting Michael’s no-evidence motion on testamentary capacity, but the trial court 

did not grant Michael’s no-evidence motion on that ground. Accordingly, we overrule 

this portion of their first issue.
8

The person challenging the validity of an instrument generally bears the burden 

of proving the elements of undue 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, no pet.) (mem. op.); see Rothermel, 369 S.W.2d at 

922 (“The burden of proving undue influence is upon the party contesting [the will’s]

execution.”). This general rule applies to transfers from parent to child. Quiroga, 2011

WL 944399, at *5. Such transfers, standing alone, do not give rise to a presumption 

of undue influence, leaving the burden with the party challenging the transaction’s 

validity. See id.8 This is because “nothing is more common or natural than for a 

 

8

In Quiroga, the decedent’s ex-wife challenged the decedent’s having replaced 

her on a joint bank account with his adult daughter, who the ex-wife alleged had 

exercised undue influence in accomplishing the transaction. 2011 WL 944399, at *1.

Our sister court, in the memorandum opinion authored by Justice Jane Bland, now a 

justice on the Supreme Court of Texas, held that the burden to prove no undue 

influence under the facts of the case did not shift to the decedent’s daughter, relying 

on Gates v. Asher, 280 S.W.2d 247, 250 (Tex. 1955). Id. at *5. In Gates, the respondent 

had complained in the intermediate court about the trial court’s refusal to submit an 

issue on the question of undue influence exerted by the petitioner over her mother in

procuring a deed’s execution. 280 S.W.2d at 250. The supreme court stated that the 

intermediate court had properly overruled that complaint because a deed from a 

parent to a child does not give rise to the presumption of undue influence and 

because the respondents, who had retained the burden of proof on the issue, did not 

refer to any evidence other than the mother’s frail, enfeebled condition and the fact 

that the petitioner had lived with her off and on for a number of years. Id. The court 

further noted that “the presumption of fraud or undue influence under certain 

circumstances where the grantee occupies a confidential or fiduciary relationship to 

the grantor” was not a rule that applied “to the transaction between a mother and 

daughter.” Id.; see also Saufley v. Jackson, 16 Tex. 579, 587 (1856) (holding that, as to 

deed from mother to daughter, “every presumption is in favor of the validity and 

fairness of the deed” and that “to set aside the deed so made by the mother, it must 

be proven without the aid of presumption, that she had been fraudulently practiced
9

[parent] to bestow gifts upon his [or her] children.” Hager v. Hager, 127 S.W.2d 234, 

238 (Tex. App.—Eastland 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 the relation itself; but never where the gift is from the 

parent to the child, and no suspicion whatever 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 cases involving fiduciary relationships, a presumption of undue 

influence may arise, requiring the person receiving 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. Taliaferro, 254 S.W.2d 157, 163 (Tex. App.—Fort Worth 1952, writ ref’d n.r.e.)

(noting that when “the ground of . . . undue influence is plead[ed], as in this case, 

against the devisee who occupies a confidential or fiduciary relation to the maker of 

the instrument, the burden rests on the devisee to show the fairness of the transaction 

by appropriate evidence,” but holding that no presumption of unfairness arises merely 

 

upon by some person or persons, for the purpose of procuring the deed, and that it 

was so procured”). However, there was no indication in Gates or Saufley of whether 

the child had also been the parent’s attorney in fact. Cf. Millican v. Millican, 24 Tex. 

426, 451 (1859) (stating that the parties’ relationship, in which the defendant-son

attended to the transaction of his mother’s business in the probate court as 

administratrix of her deceased husband’s estate and “had the superintendence of her 

out of door affairs generally” could “scarcely be thought a case of agency, of a 

character which awakens the jealous scrutiny of a court of equity, into the dealings of 

the parties”).
10

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

creates an agency relationship, which is a fiduciary relationship as a matter of law.”

Miller v. Lucas, No. 02-13-00298-CV, 2015 WL 2437887, at *4 (Tex. App.—Fort 

Worth 2015, pet. denied) (mem. op.) (noting that a fiduciary owes his principal a high 

duty of good faith, fair dealing, honest performance, and strict accountability); see 

Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 231 (Tex.

2019) (“An agreement creating a power of attorney creates a fiduciary relationship.”); 

Nat’l Plan Adm’rs, Inc. v. Nat’l Health Ins. Co., 235 S.W.3d 695, 700 (Tex. 2007) (noting 

that an agency relationship imposes certain fiduciary duties on the parties); Johnson v. 

Brewer & Pritchard, P.C., 73 S.W.3d 193, 200 (Tex. 2002) (“Under the common law of 

most jurisdictions, including Texas, agency is also a special relationship that gives rise 

to a fiduciary duty.”). Thus, an attorney in fact, as a fiduciary, carries the burden of 

proof to overcome the presumption of unfairness that arises in self-dealing 

transactions. See Danford, 550 S.W.3d at 285; see also Tex. Bank & Tr. Co. v. Moore, 595 

S.W.2d 502, 509 (Tex. 1980) (stating that a fiduciary relationship puts on a profiting 

fiduciary “the burden of showing the fairness of the transactions”); Healey v. Healey, 

529 S.W.3d 124, 135 (Tex. App.—Tyler 2017, pet. denied) (“A fiduciary may not use 

his position to self-deal.”). 

Michael argued to the trial court, see infra n.14, and argues on appeal that 

because Danford, a 2018 opinion, was decided after the effective date of the 

amendment to Estates Code Section 751.101, it does not apply here. However, the 
11

law in effect at the time Danford was decided was the same law that was in effect in the 

instant case, and the facts here are quite similar to those present in Danford. In 

Danford, the deceased executed a will naming Robert Stawarczik9as the executor and 

sole beneficiary of her estate on the same day in 2010 that she executed a general 

power of attorney in his favor. 550 S.W.3d at 278. All of these documents were 

executed at the deceased’s home in front of witnesses whom Stawarczik had brought 

and who had not previously met her. Id. Her nephews opposed the will’s admission 

to probate, arguing that she had lacked testamentary capacity and that Stawarczik had 

exercised undue influence over their aunt. Id. at 278–79. 

Stawarczik filed a traditional and no-evidence motion for summary judgment, 

arguing in his no-evidence motion that there was no evidence of the lack of 

testamentary capacity or undue influence. Id. The nephews responded by attaching a 

copy of the general power of attorney appointing Stawarczik as their aunt’s agent, id.

at 279, and argued that this evidence of a fiduciary relationship shifted the burden of 

proving lack of undue influence to Stawarczik. Id. at 285. The court agreed, holding 

that when the nephews presented some evidence of a fiduciary relationship—i.e., 

Stawarczik’s appointment as attorney-in-fact on the same day as the will’s execution—

 

9The court does not make clear in Danford who Stawarczik was to the deceased,

other than that he was not her husband or child. 550 S.W.3d at 278 n.2.
12

this raised a presumption of undue influence sufficient to defeat Stawarczik’s noevidence motion.10

 Id. at 285–86. 

Michael contends that in Danford, the Fourteenth Court improperly interpreted 

the unfairness presumption applicable to a fiduciary in self-dealing transactions and 

relies on the analysis of the Beaumont Court in Fielding v. Tullos to contend that this a 

rebuttable presumption. No. 09-17-00203-CV, 2018 WL 4138971, at *7 (Tex. App.—

Beaumont Aug. 20, 2018, no pet.) (mem. op.). In Fielding, the estate’s independent 

administrator (the deceased’s niece) challenged the deceased’s having changed the 

beneficiary designation on his accounts to his caretaker, complaining that a fiduciary

relationship had existed between the deceased and the caretaker that gave rise to a 

presumption of undue influence. Id. at *1, *5. The caretaker moved for summary 

judgment on undue influence.

11

 Id. at *2–3. In her response, the administrator 

pointed out that the caretaker had signed one of the account agreements as “agent”

and that the deceased had executed a power of attorney for his accounts naming the 

caretaker as his agent. Id. at *3. 

 

10The court also held, among other things, that the trial court had erred to the 

extent it had granted Stawarczik’s no-evidence motion on the issue of testamentary 

capacity because Stawarczik had the burden on that issue. Id. at 282.

11The Fielding court construed the caretaker’s motions as asserting only

traditional grounds for summary judgment. 2018 WL 4138971, at *5. Thus, we 

question its applicability to the issue before us regarding burden-shifting on a noevidence summary judgment.
13

While the Beaumont court in Fielding did hold that the presumption is a 

rebuttable presumption that is extinguished with the offering of contrary evidence, 

not one that shifted the ultimate burden of proof of unfairness, id. at *7, none of the 

cases cited in Fielding regarding this burden-shifting proposition involved 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.—Houston [1st Dist.] 2010, pet.

denied) (involving trademark infringement); Long v. Long, 234 S.W.3d 34, 37 (Tex. 

App.—El Paso 2003, pet. denied) (involving the characterization of marital property 

on divorce); All Am. Builders, Inc. v. All Am. Siding, Inc., 991 S.W.2d 484, 489 (Tex. 

App.—Fort Worth 1999, no pet.) (involving trademark infringement and citing Gen. 

Motors Co. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1983) (involving products liability)); 

Tex. Nat. Res. Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex. App.—Austin 

1996, no writ) (involving an employment dispute); Garza v. City of Mission, 684 S.W.2d 

148, 152 (Tex. App.—Corpus Christi 1984, writ dism’d w.o.j.) (involving employment 

termination)). Accordingly, we are unpersuaded by Michael’s argument.

To the contrary, Danford and case law from the supreme court and other courts 

of appeals reflect that in situations involving self-dealing in fiduciary or confidential

relationships, a presumption of unfairness arises that shifts both the burden of 

production and the burden of persuasion to the fiduciary seeking to uphold the 

transaction. See Moore, 595 S.W.2d at 509; see also Stephens Cty. Museum, Inc. v. Swenson, 

517 S.W.2d 257, 260 (Tex. 1974) (observing that when a fiduciary relationship existed 
14

between sisters and their brother, who was operating under their power of attorney 

and who was also a director of the museum to which the sisters had made a 

contribution that they later sought to set aside, “[u]nder such conditions, equity 

indulges the presumption of unfairness and invalidity, and requires proof at the hand 

of the party 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 

respondent “established that the conveyance was executed and delivered during the 

existence of the attorney-client relationship, the burden was on petitioner to show 

that his acquisition of the interest conveyed by the deed was fair, honest[,] and 

equitable”); Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 576 (Tex. 1963)

(“Contracts between a corporation and its officers and directors are not void but are 

voidable for unfairness and fraud with the burden upon the fiduciary of proving

fairness.”); McAuley v. Flentge, No. 06-15-00051-CV, 2016 WL 3182667, at *7 (Tex. 

App.—Texarkana June 8, 2016, pet. denied) (mem. op.) (citing Swenson, 517 S.W.2d at 

260; Archer, 390 S.W.2d at 740); Jordan v. Lyles, 455 S.W.3d 785, 792 (Tex. App.—Tyler 

2015, no pet.) (op. on reh’g) (“Even in the case of a gift between parties with a 

fiduciary relationship, equity indulges the presumption of unfairness and invalidity, 

and requires proof at the hand of the party claiming validity of the transaction that it 

is fair and reasonable.”).12 Thus, we decline Michael’s invitation to follow Fielding. 

 

12While Michael contends that he produced evidence of fairness that, under his 

Fielding-based rebuttable-presumption theory, would have overcome the presumption 
15

It is undisputed that Michael held his mother’s power of attorney when he 

assisted in securing the 2008 will, which enhanced his share of the estate13 and upon 

which he relies in attempting to show that she revoked the 2007 will. As the holder of

his mother’s power of attorney, Michael was her fiduciary. See Bombardier Aerospace 

Corp., LLC, 572 S.W.3d at 231; Lucas, 2015 WL 2437887, at *4. Thus, Michael’s 

fiduciary status shifted the burden to him to overcome the resulting presumption of 

unfairness. See Moore, 595 S.W.2d at 509. Because the burden of proof shifted to 

Michael,

14 the trial court was precluded from granting his no-evidence motion on that 

basis. See Tex. R. Civ. P. 166a(i). We sustain Jan, Donna, and Paula’s first issue as to 

undue influence. 

 

of unfairness, his evidence would have raised only a fact issue for the trier of fact, 

making summary judgment inappropriate. See Ginther v. Taub, 570 S.W.2d 516, 525–26 

(Tex. App.—Waco 1978, writ ref’d n.r.e.).

13The 2008 will deleted Donna and Paula as beneficiaries. Michael also used 

Wynell’s power of attorney to make arrangements for her personal care, her finances, 

her estate planning, and the family ranch, and after Wynell gave him signatory 

authority over her bank accounts, he made transfers to himself and to other accounts, 

including his offshore bank account. 

14Although Michael argued in the trial court that the 2017 Durable Power of 

Attorney Act made “case authority cited by [his stepsisters] arising under the former 

statute” (former Texas Probate Code § 489B(a), now Estates Code Section 751.101)

no longer applicable, he concedes on appeal that the statutory amendment “applies 

only to [powers of attorney] executed after the effective date” of September 1, 2017.

And although Jan, Donna, and Paula contend that the 2017 Act, if applicable, would 

impose on Michael the duty to preserve the principal’s estate plan, in light of our 

disposition of this issue, we need not reach this argument. See Tex. R. App. P. 47.1.
16

B. Traditional Summary Judgment Requires Conclusive Proof

In their third issue, Jan, Donna, and Paula argue that Michael did not

conclusively prove that Wynell had testamentary capacity on the date that she 

executed the 2008 Will and that therefore the trial court’s grant of traditional 

summary judgment was erroneous. 

An applicant for the probate of a will must prove among other facts that the 

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

testator did not revoke the will. Tex. Est. Code Ann. § 256.152; Ashley v. Usher, 384 

S.W.2d 696, 698 (Tex. 1964) (construing predecessor to Estates Code Section 256.152 

and stating that “[t]he burden of establishing that a will has not been revoked is placed 

by this statute on the proponent of the will sought to be probated”). A written will 

may be revoked by “a subsequent will, codicil, or declaration in writing that is 

executed with like formalities.” Tex. Est. Code Ann. § 253.002. A party seeking 

revocation by a subsequent will must prove “that the subsequent instrument was 

executed at a time when the [maker] was of sound mind and disposing memory.” 

Harkins v. Crews, 907 S.W.2d 51, 58 (Tex. App.—San Antonio 1995, writ denied).

Michael sought traditional summary judgment asking the trial court to deny the 

2007 Will’s admission to probate because the 2008 Will revoked the 2007 Will. As is 

pertinent to this appeal, it was Michael’s burden to prove as a matter of law (1) that 

Wynell had testamentary capacity on July 24, 2008—the date she signed the 2008 Will, 

(2) that the will was executed with the requisite formalities, and (3) that the will 
17

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

see also Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (“To 

prevail on a motion for summary judgment, a movant must establish that there is no 

genuine issue of material fact and that the movant is entitled to judgment as a matter 

of law.”).

To prevail on a traditional motion for summary judgment, a movant with the 

burden of proof must provide conclusive proof as to each element on which he bears

the burden. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Only 

when the movant produces conclusive evidence establishing the right to summary 

judgment does the burden shift to the nonmovant to come forward with competent

controverting evidence that raises a fact issue. Chavez v. Kan. City S. Ry. Co., 520

S.W.3d 898, 899–900 (Tex. 2017) (per curiam) (“At trial, a presumption operates to 

establish a fact until rebutted[] but not in summary judgment proceedings.”). If the 

movant does not meet the burden of producing conclusive proof, then the burden 

never shifts to the nonmovant to present any evidence, or to respond, at all. See id. at 

900–01.

As the supreme court explained in City of Keller v. Wilson, there are several types 

of conclusive evidence, which may or may not be undisputed evidence. 168 S.W.3d at 

815, 816 (Tex. 2005) (“Undisputed evidence and conclusive evidence are not the

same—undisputed evidence may or may not be conclusive, and conclusive evidence 

may or may not be undisputed.”). One type of undisputed evidence that rises to the 
18

level of conclusive proof is evidence that a party admits is true. Id. at 815. For 

example, “a claimant’s admission that he was aware of a dangerous premises 

condition is conclusive evidence he needed no warning about it.” Id. (citing Wal-Mart 

Stores, Inc. v. Miller, 102 S.W.3d 706, 709–10 (Tex. 2003) (per curiam)). 

Another type of conclusive proof is evidence that allows only one logical 

inference, even if disputed. Id. at 814, 816 (noting, for example, that in Murdock v. 

Murdock, 811 S.W.2d 557, 560 (Tex. 1991), although a child’s mother directly disputed 

that she had engaged in conjugal relations with anyone else during the relevant time, 

the blood test conclusively proved that the defendant was not the child’s father). “By 

definition, [evidence that allows only one logical inference] can be viewed in only one 

light, and reasonable jurors can reach only one conclusion from it.” Id. at 814. Thus, 

for this evidence to rise to the level of conclusive proof, it must be of the type that 

reasonable jurors could not disbelieve. Id. at 815. Most examples of undisputed 

evidence that become conclusive include “physical facts that cannot be denied.” Id. 

(citing Cty. of Bexar v. Santikos, 144 S.W.3d 455, 460–61 (Tex. 2004) (holding that 

undisputed evidence that access remained along 90% of a tract’s frontage conclusively 

disproved an impaired-access claim)). While “[i]t is impossible to define precisely 

when undisputed evidence becomes conclusive,” the test is whether reasonable jurors 

are free to disbelieve the evidence. Id. at 815–16. Even if undisputed, evidence is not 

conclusive if reasonable jurors could differ in their conclusions. Id. 
19

To discharge his summary judgment burden, Michael offered four witnesses—

Donald Barley, Sandra Barley, Marti Luttrall,15 and Linda Solomon—who each 

attested to Wynell’s capacity at the time the 2008 Will was executed. However, 

because a factfinder was not bound to believe Michael’s four witnesses, his proof does 

not fall within the category of conclusive proof that allows only one logical inference. 

Nor does any admission as to Wynell’s testamentary capacity appear in this record. 

Because Michael failed to present conclusive proof of Wynell’s testamentary capacity, 

he fell short of the legal standard that would entitle him to a traditional summary 

judgment, and the burden never shifted to Jan, Donna, and Paula to produce any 

evidence at all. Accordingly, the trial court erred when it granted Michael’s motion 

for traditional summary judgment, and we sustain Jan, Donna, and Paula’s third issue. 

IV. Conclusion

Having sustained part of Jan, Donna, and Paula’s first issue and having 

sustained their third issue, we reverse the trial court’s judgment and remand this case 

to the trial court for further proceedings. See Tex. R. App. P. 43.2(d).

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: December 19, 2019

 

15Sandra and Marti witnessed the 2008 will.