1

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER OF THE ESTATE

OF

REVY L. WHARTON.

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§

§

§

§

No. 08-20-00002-CV

Appeal from the

County Court at Law No. 2

of Midland County, Texas

(TC# P18584)

O P I N I O N

This is a dispute about the interpretation of a will.1 The decedent, Revy L. Wharton, left a 

will in which he expressed his “desire” that his majority stake in a company be sold to his business 

partner, appellant Louise McKay. The will proposed terms of sale in the form of payments to 

beneficiaries under the will. McKay filed suit against the estate’s independent executor to compel 

the stock sale. On cross-motions for summary judgment, the trial court found that the executor has

no legal obligation to sell the stock and that McKay is not a beneficiary under the will. McKay’s 

claims were dismissed with prejudice.

1 This case was transferred from the Eleventh Court of Appeals pursuant to the docket equalization efforts of 

the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. We follow the precedents of the Eleventh Court to the 

extent they might conflict with the precedents of this court. TEX. R. APP. P. 41.3.
2

On appeal and on the limited record before us, we conclude that neither party demonstrated 

entitlement to complete relief as a matter of law. We conclude that the testator’s intent was that 

his majority ownership interest in the company be sold, on terms stated in the will which would 

have the effect of bequeathing money to the will beneficiaries. Based solely on the will itself and 

without any further development of the record, the trial court erred by granting summary judgment 

that the will imposed no legal obligation for the executor to sell the stock to McKay. Moreover, 

because the will acknowledges the need to reasonably negotiate certain aspects of the intended 

transaction, on this record McKay likewise was not entitled to her proposed relief of a court order 

requiring the executor to complete the sale of stock in accordance with the incomplete terms 

outlined in the will.

Background

Revy Wharton was survived by his two children, Lucille S. Bode and Lawrence R. 

Wharton, as well as by his brother William Wharton, who has since passed away. Lucille was 

appointed as independent executor of the will, with all powers of independent executors under the 

laws of the State of Texas. Other key provisions of the will are attached as an appendix to this 

opinion.

The decedent’s business partner, Louise McKay, filed suit against the executor in an 

attempt to enforce provisions of the will describing terms for the sale of a majority stake in their 

business venture. The dispute was presented to the trial court on the following stipulated facts:

1. Revy L. Wharton (“Decedent”) died on January 18, 2016, a resident of Midland 

County, Texas.

2. At the time of his death, Decedent owned a majority interest in a business in 

California known as Valley Improvement Programs, Inc. (“VIP” or the 

“Company”). VIP issued 9,000 total shares, which were owned as of the date of 

Decedent’s death as follows:
3

Owner Shares Percentage

a Revy L. Wharton 6,000 66.67%

b William Wharton[] 1,000 11.11%

c Lucille Bode 1,000 11.11%

d Louise McKay 1,000 11.11%

3. Decedent’s valid Last Will and Testament, dated January 14, 2016 (the “Will”), 

was admitted to probate and Lucille S. Bode was appointed as the Independent 

Executor of the Estate of Revy L. Wharton, Deceased (“Executor”) on March 8, 

2016.

The parties agreed, and the trial court found, that the language of the will is not ambiguous.

The executor and McKay filed cross-motions for summary judgment. The primary dispute 

concerned whether the will required the executor to sell to McKay the decedent’s majority stake 

in VIP. The executor also took the position that McKay is not a beneficiary of the will and therefore 

has no standing to pursue claims against the estate.

The trial court entered a “Final Judgment Construing Will and Dismissing Claims,” 

granting the executor’s motion “in all things.” The final judgment stated that “Article 1, 

Section 1.01, of the Last Will and Testament of Revy L. Wharton . . . contains precatory language 

that does not impose a legal obligation on the Executor to sell Revy L. Wharton’s (now the 

Estate’s) majority ownership interest in Valley Improvement Programs, Inc. to Louise McKay,” 

and that “Louise McKay is not a beneficiary” under the will and “does not have an enforceable 

property right in this Estate.” The judgment dismissed all claims with prejudice, and McKay filed 

a notice of appeal.

Analysis

Summary judgments are reviewed de novo on appeal. See, e.g., Lujan v. Navistar, Inc., 555 

S.W.3d 79, 84 (Tex. 2018). “A traditional motion for summary judgment requires the moving party 

to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter 
4

of law.” Id. “Issues not expressly presented to the trial court by written motion, answer or other 

response shall not be considered on appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c). 

“When both sides move for summary judgment, as they did here, and the trial court grants one 

motion and denies the other, reviewing courts consider both sides’ summary-judgment evidence, 

determine all questions presented, and render the judgment the trial court should have rendered.” 

Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 124 (Tex. 2010).

I. Standing

As a threshold jurisdictional matter, we will address the question of McKay’s standing. In 

her second amended petition, McKay alleged causes of action against the independent executor 

for breach of fiduciary duty, conversion, unjust enrichment and constructive trust, declaratory 

judgment, violation of the will’s in terrorem clause, and removal under Estates Code 

Section 404.0035. The parties agreed to a procedure by which they would present summaryjudgment motions to the court regarding construction of the will.

In her motion for summary judgment, the executor asked the trial court to determine that 

McKay “is not a beneficiary under the Decedent’s Will and does not have an enforceable property 

right in the Decedent’s Estate and therefore, lacks standing in this Estate.” That motion also asked 

for a declaration that the will did not impose a legal obligation on the executor to sell the VIP stock

to McKay, but apart from the standing argument it did not specifically address and request

summary judgment on the merits of each of the various legal claims in McKay’s petition (such as 

whether the executor owed and breached a fiduciary duty to McKay). Even if the construction of 

the will ultimately might be determinative of McKay’s various claims, without specifically 

addressing those claims in the motion for summary judgment, the only legitimate basis upon which 

the trial court could have entered its final judgment dismissing all claims, including those not 
5

specifically addressed in the motion, would have been a determination that McKay lacked standing 

to sue. See TEX. R. CIV. P. 166a(c) (“The motion for summary judgment shall state the specific 

grounds therefor.”).

A person interested in the outcome of an estate plan has standing in a probate proceeding, 

including anyone having a property right in or claim against the estate being administered. See 

Archer v. Anderson, 556 S.W.3d 228, 237 (Tex. 2018) (citing TEX. EST. CODE ANN. §§ 22.018(1), 

55.001); see also TEX. EST. CODE ANN. § 31.001(7) (will construction suit falls within the scope 

of probate proceedings). Regardless of whether she can prevail on the merits, McKay meets this

requirement for standing. She is named in the will. The testator stated in the will his “desire” that 

his property be sold to her, and she has an interest in acquiring it. An interested party challenging 

both the interpretation of a will and the distribution of an estate is not required to prove the merits 

of her claim merely to establish her standing to appear and be heard. See In re Estate of Redus, 

321 S.W.3d 160, 162 (Tex. App.—Eastland 2010, no pet.) (citing Baptist Found. of Tex. v. 

Buchanan, 291 S.W.2d 464 (Tex. Civ. App.—Dallas 1956, writ ref’d n.r.e.)). Whether the will 

requires sale of the decedent’s stock is the disputed question, and McKay has standing to litigate 

it. The trial court erred by ruling otherwise and by dismissing McKay’s claims which were not 

challenged on the merits in the executor’s motion for summary judgment.

II. Will construction

“A person who makes a will may . . . direct the disposition of property or an interest passing 

under the will . . . .” TEX. EST. CODE ANN. § 251.002(b)(2); see also Boyles v. Gresham, 153 Tex. 

106, 112, 263 S.W.2d 935, 938 (1954) (“The will is but the expression of the desire of and direction 

by the testator as to what shall be done with the property left by him . . . .”). “An executor is the 

person or persons nominated by a testator to carry out the directions in the testator’s will and to 
6

dispose of the testator’s property, according to the will.” 1 Ronald R. Cresswell et al., Texas 

Practice Guide: Wills, Trusts and Estate Planning § 4:137 (2018 ed.). When a testator authorizes 

an executor to sell property, “[a]ny particular directions in the testator’s will regarding the sale of 

estate property shall be followed unless the directions have been annulled or suspended by court 

order.” TEX. EST. CODE ANN. § 356.002(b).

The longstanding rules of will construction require an approach that is distinct from the 

interpretation of many other categories of legal texts. The objective is to discern and implement 

the testator’s intent as reflected in the instrument as a whole. See, e.g., Hysaw v. Dawkins, 483 

S.W.3d 1, 7 (Tex. 2016). The method is “holistic” and seeks to harmonize apparent conflicts or 

inconsistencies in language. See id. at 4, 8; see also Knopf v. Gray, 545 S.W.3d 542, 545 (Tex. 

2018).

The parties’ dispute primarily concerns the effect of language used by the testator to 

describe the proposed sale of the majority interest in VIP to McKay. Section 1.01(A) of the will 

states: “It is my desire, subject to tax considerations and other considerations to be worked out 

among the interested parties that, after my death, all of my majority ownership interest in the 

Company be sold to Louise McKay as described in subparagraph B. immediately below on terms 

reasonably negotiated.” If McKay acquires the stock and later decides to sell it, the will proposes 

that William, Lucille, and Lawrence, collectively and individually, shall have a right of first refusal 

to purchase the entire business or any portion that McKay wishes to sell, “for the purchase price 

she paid for it in the first instance taking into account any enhancement of the Company.” The will 

goes on to state the testator’s “desire” and “further wish” that “matters be structured” such that 

Lucille would receive “a net $50,000 a year for 10 years after my death at no interest” and that 

Lawrence would receive “$25,000 per year for 10 years after my death at no interest from the 
7

Company which is in addition to the gift in Section 1.02 to him.” Under these provisions of the 

will, once Lucille and Lawrence received $500,000 and $250,000 respectively, whether over a tenyear period or less, then McKay’s “purchase price for all of my majority ownership interest shall 

be paid in full.” The testator also stated his “further desire” that his brother William continue to 

receive his salary of $150,000 a year, “provided that the obligation of the Company to pay this 

amount in either the form of salary or pension only exists as long as my brother is alive, 

notwithstanding anything contained herein to the contrary, and is also subject to the continuing 

profitability of the Company.”

McKay contends that these provisions of the will instruct the executor to offer her the 

opportunity to buy the VIP stock. She emphasizes authorities that implement the intent of the 

testator despite the use of precatory words such as “desire” and “wish,” which she argues can be 

effective to create mandatory obligations in a will. See Knopf, 545 S.W.3d at 547 (“whether 

language is precatory or testamentary is itself a question of intent”); Bergin v. Bergin, 159 Tex. 

83, 89, 315 S.W.2d 943, 947 (1958) (“It is true that such words as ‘wanted’, ‘wish’, and ‘desire’ 

in their ordinary and primary meaning are precatory. But, they are often construed as mandatory 

when used in an instrument admittedly a will or when it appears from the context or from the entire 

document that they are the expression of the testator’s intention in making disposition of his 

property.”). She thus argues that testators have the right to dispose of property as they see fit, and 

to avoid defeating the testamentary intent, the will should be interpreted to make the stock sale 

mandatory.

2

2 McKay also relies on the will’s section headings—including “Intent Regarding California Business” and 

“Sale to Louise McKay With Right of First Refusal”—to support her argument about the testator’s intent. But the will 

also expressly states in Section 4.05 that “[t]he captions of the various articles, sections and paragraphs of this will 

have been inserted for convenience of reference only, and the same shall not in any manner be taken into account in 

construing or interpreting this will.” McKay offers no argument to explain why the captions of Section 1.01 should 
8

In addition to the parts of Section 1.01 noted above, McKay also argues that the will 

anticipates the sale of shares to her because it states that William, Lucille, and Lawrence “shall, 

collectively and individually,” have a “right of first refusal” to repurchase all or part of the 

business, should she later decide to sell. McKay reasons that if it were not the testator’s intent that 

she buy the stock, there would be no reason to also provide that his family should retain the right 

of first refusal applicable to any subsequent sale of the business. Interpreting the document to make 

the sale to McKay merely optional would render superfluous a substantial, intricately planned 

portion of the will. According to McKay, that also would result in a substantial asset being 

“haphazardly” distributed as part of the residuary estate rather than in accord with the testator’s 

detailed stated wishes.

In contrast, the executor relies upon authorities that recognize the will’s text as the source 

for determining intent, arguing that no binding effect should be given to the will to the extent it 

used words of mere “request or expectation.” E.g., Byars v. Byars, 143 Tex. 10, 14, 182 S.W.2d 

363, 364–65 (1944). The executor emphasizes the will’s use of such precatory language to argue 

that the portion of the will describing a sale of stock to McKay is advisory and non-binding, and 

thus there is no legal obligation for the estate to sell the stock. Section 1.01 stated that it was the 

testator’s “desire” that the stock be sold to McKay. It also stated the testator’s “desire,” “further 

wish,” and “further desire” that the sale be structured to pay certain amounts to his daughter, son, 

and brother. Further guidance in Section 1.01(C)-(D) about the terms of sale are characterized as 

the testator’s “desire,” “intent,” and “request.”

control despite the contrary direction in Section 4.05, and accordingly we disregard the captions as irrelevant to our 

task of will construction.
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The executor contrasts the precatory language used in Section 1.01 with other parts of the 

will which more definitely express the intent to make a devise. Rather than expressing the testator’s 

“desire,” Sections 1.02-1.05 introduce gifts with the phrase “I give . . . .” The will specifically 

defines “give” to mean “give, devise and bequeath.” The executor also relies upon the conditional 

nature of the proposed sale, noting Section 1.01(a)’s references to the sale being “subject to tax 

considerations and other considerations to be worked out among the interested parties,” the need 

for additional terms to be “reasonably negotiated,” and a sentence introduced by stating “[i]f 

Louise McKay acquires said company,” implicitly acknowledging the possibility that she might 

not acquire the company. Finally, the executor observes that the will cannot force the sale of 

property on an unwilling buyer, suggesting that treating the language as mandatory would violate 

public policy.

A careful review of the complete will leads us to conclude that despite the use of precatory 

terminology, it was the testator’s intention—and his instruction to his executor—that the stock be 

offered for sale to his business partner, on terms that would effectuate his larger plan for the 

distribution of the estate to his heirs. Considered in isolation, Section 1.01 does describe a sale of 

shares to McKay in terms of preference rather than command. But a comprehensive review of the 

entire will tells another story. In Section 1.01, the testator described a scenario in which the 

majority interest in VIP would be sold—not in terms of an absolute value for the shares, but rather 

in the form of “distributions” paid to each of the three primary beneficiaries under his will. Lucille 

would receive $500,000 paid out over 10 years, and Lawrence would receive $250,000 paid out 

over 10 years.3 William would be paid $150,000 annually, as salary or pension, so long as he lived 

3 Curiously, in a part of the will not substantially relied upon by either party to support their competing 

interpretations, the testator stated his desire that the “distributions from the Company” paid to Lucille and Lawrence 

“be expedited as may be practicable.” The testator acknowledged this might not be possible, stating in the will: “If the 

economics, for whatever reason, do not justify stepping up the amounts or duration of these distributions, then it is my 
10

and the company remained profitable. And the three beneficiaries would equally split the 

company’s working capital on the books.

In addition to these payments from the company, proposed as consideration for the sale of 

the shares to McKay, the will made other specific, direct bequests. All three named beneficiaries 

would share in the proceeds from selling a ten-acre desert property, with William and Lucille each 

taking 37.5% and Lawrence taking the remaining 25%. Lawrence was given $40,000 in cash. 

William was given $75,000 in cash, a trailer, and guns. Lucille received the residuary of the estate.

The proposed schedule of distributions resulting from selling the VIP stock to McKay 

reflected the testator’s recognition of the value of his majority stake as a major component of the 

estate and of his bequests to each of his beneficiaries. By contrast, if the company is not sold and 

the proceeds are not allocated by the testator’s professed “desire,” “wish,” “intent,” and “request,” 

McKay contends that the majority stake would fall into the residuary estate. The executor does not 

expressly argue that the VIP shares are part of the residuary estate, she only argues that she is not 

legally obligated to sell the shares to McKay. But the executor also does not argue or present any 

record to suggest that this would not be the consequence of her position. The differences in the 

distributions of the estate under the two scenarios are as follows:

request that they be kept at the $50,000.00 and $25,000.00 respectively for each of Lucille S. Bode and Lawrence R. 

Wharton for the respective ten year periods previously set forth in this Section.” The will did not state that the total 

amount to be paid to Lucille and Lawrence should be discounted in the event of expedited payments, and if anything 

it arguably provided otherwise by stating that when “Lucille S. Bode and Lawrence R. Wharton have received 

$500,000.00 and $250,000.00 respectively whether over a ten (10) year period or less, Louise McKay’s purchase price 

for all of my majority ownership interest shall be paid in full.” If there would be no discounting of payments to account 

for the present value of accelerating future payments, McKay would be economically disincentivized from expediting 

payments in accordance with the testator’s wishes. The implementation of this aspect of the will therefore might be 

one of the matters that the testator anticipated would be “reasonably negotiated” between the executor and McKay. 
11

Testator’s “desire”:

Sale of VIP stock on will’s terms

VIP stock falls

into residuary estate

Lucille 37.5% of desert property proceeds

Residuary estate

$500,000 paid over 10 years

Equal share of working capital 

37.5% of desert property proceeds

Residuary estate

66.67% majority stake of VIP

Lawrence 25% of desert property proceeds 

$40,000

$250,000 paid over 10 years

Equal share of working capital 

25% of desert property proceeds 

$40,000

No value for VIP stock

William 37.5% of desert property proceeds

$75,000

Trailer and guns

$150,000/year salary/pension (for life, 

subject to company’s profitability)

Equal share of working capital 

37.5% of desert property proceeds

$75,000

trailer and guns

No value for VIP stock

For Lawrence and William, the difference between these two scenarios is stark. Under the 

testator’s desired allocation of proceeds from selling the company, Lucille’s extended payout is 

double the value of her brother’s. But if the executor treats the testator’s “desire” to sell and 

distribute the value of the VIP stock as a mere suggestion, and if for that reason the shares instead 

fall into the residuary estate, the consequences are that a substantial part of the testator’s intended 

bequests to Lawrence and William are erased, and Lucille (the independent executor) instead 

would keep the entire value of the testator’s stake in VIP for herself.

The guiding principle of our construction of the will is that it is our objective to discern 

and give effect to the testator’s intent as expressed in the will’s four corners. See Hysaw, 483 

S.W.3d at 4. In this case, it is evident that the testator did not intend for the entire value of his 

majority stake in VIP to be solely owned by Lucille, to the exclusion of her brother and uncle. 

Instead, it was the testator’s intent that the value of that stock be liquidated and distributed among 

his heirs according to the detailed allocation set forth in the will.
12

Having resolved the fundamental difference between the parties concerning the 

construction of the will, we now turn to resolution of issues presented by the appeal.

III. Executor’s motion for summary judgment

In her “Traditional Motion for Summary Judgment – Will Construction,” the executor 

asked the court to “construe the terms of the Decedent’s probated Will and find and declare, as a 

matter of law, that (i) Article 1, Section 1.01, of the Decedent’s Will contains precatory language 

that does not impose a legal obligation on Executor to sell the Decedent’s majority ownership 

interest in Valley Improvement Programs, Inc. to Louise McKay, and (ii) Louise McKay is not a 

beneficiary under the Decedent’s Will and does not have an enforceable property right in the 

Decedent’s Estate and therefore, lacks standing in this Estate.”

“As trustee of the property of the estate, the executor is subject to the high fiduciary 

standards applicable to all trustees.” Humane Soc. of Austin & Travis County v. Austin Nat’l Bank, 

531 S.W.2d 574, 577 (Tex. 1975). As explained above, the will expresses the testator’s wish that 

his majority stake in VIP be sold and that the proceeds be distributed to the beneficiaries named in 

the will. Any such instruction generally must be respected by the executor. See TEX. EST. CODE

ANN. § 356.002(b).

Relying solely on the language of the will, the executor asked the trial court to declare the 

provisions of Section 1.01, which set forth the testator’s wishes concerning the VIP shares, as 

purely advisory and legally non-binding. It was error for the trial court to do so. We need not 

speculate about what the will would have required if McKay had no interest in acquiring the stock, 

or if the executor’s attempts to negotiate remaining terms had proved futile. No such facts were 
13

before the trial court.4 We also need not determine whether, consistent with her fiduciary duties, 

some set of circumstances could have justified the executor in deciding, unilaterally or with the 

consent of the other will beneficiaries, to dispose of the VIP stock in some fashion other than by 

selling to McKay. No such circumstances were presented to the trial court. 

As a matter of will construction, and without any factual record other than the will and the 

parties’ limited stipulations, the trial court should have denied the executor’s motion for a summary 

judgment declaring as a matter of law that she had no legal obligation to sell the VIP shares to 

McKay. For the same reason, the record did not support a declaration as a matter of law that McKay 

is not a beneficiary under the will. We sustain McKay’s appeal to the extent it challenges the 

summary judgment granted in favor of the executor.

IV. McKay’s motion for partial summary judgment

McKay also assigns error to the trial court’s denial of her cross-motion for summary 

judgment. In that motion, she asked the trial court to “declare the specific devise articulated in 

Section 1.01(A) to be a mandatory provision,” and “order the Independent Executor of Revy L. 

Wharton’s Estate to complete the sale of the Estate’s stock in Valley Improvement Projects, Inc. 

to Louise McKay in accordance with the Will.” On appeal, McKay argues that the will created a 

mandatory obligation for the executor to offer her a right of first refusal to purchase the VIP 

shares.

5

4 To be clear, we do not purport to prejudge the legal issue of whether the VIP shares fall into the residuary 

estate if they are not sold to McKay. The will beneficiaries who would be impacted by that consequence are not parties 

to the appeal, nor is that precise issue before the court.

5 The executor suggests that McKay’s reframing of the issue as a “right of first refusal” in her favor cannot 

be raised for the first time on appeal. We disagree. The cross-motions for summary judgment jointly raised the issue 

of the proper construction of Section 1.01 of the will. We consider McKay’s appeal to be a permissible refinement of 

her argument on the issue jointly presented by the parties. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 

(Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new 

arguments in support of issues properly before the Court.”).
14

McKay contends that the will demonstrates the testator’s intention that the shares be sold 

to her, and as explained above we do not disagree that was his intent. However, it does not 

necessarily follow that the sale was mandatory. As argued by the executor, the testator had no 

power to make such a sale mandatory, at least to the extent a sale is contingent upon McKay’s 

consent to buy. The will acknowledged this possibility that the shares might not be acquired by 

McKay (e.g., “[i]f Louise McKay acquires said company . . .”). Beyond that, the will also 

acknowledged that its proposed terms for the sale were not wholly sufficient, and that there would 

be a need to negotiate additional terms (e.g., “tax considerations and other considerations to be 

worked out among the interested parties”). 

For these reasons, we cannot conclude that the testator’s intent that the shares be sold to 

McKay was manifested in the will as a mandatory obligation that the executor sell the shares. If 

an “agreement to agree” is unenforceable as between two parties who made such an agreement, a 

testator also cannot impose upon two other parties an enforceable “agreement to agree.” Cf. Fort 

Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000) (“It is well settled 

law that when an agreement leaves material matters open for future adjustment and agreement that 

never occur, it is not binding upon the parties and merely constitutes an agreement to agree.”).

McKay correctly notes that Section 1.01 does not expressly provide for payments to 

Lucille, Lawrence, and William in the event the shares are not sold, but that does not mean that 

the will entirely failed to provide for that scenario. As McKay acknowledges, the residuary estate 

is bequeathed to Lucille. Moreover, the other will beneficiaries are not before us, and the record 

does not reflect what arrangements the independent executor might have made with them, or what 

legal arguments they might make about the executor’s legal obligations in the event the shares are 

not sold to McKay.
15

We also cannot agree with McKay’s characterization of the will as giving her a right of 

first refusal to purchase the VIP stock. Section 1.01 does reference the concept of a “right of first 

refusal,” but only as a proposed term of the stock sale, and not as a right belonging to McKay. In 

the event of a sale, the testator expressed his desire to preserving a right of Louise, Lawrence, and 

William to re-purchase the company from McKay. It is inconsistent for McKay to argue both that 

the will requires a mandatory sale to her (as proposed in her motion in the trial court) and that it 

bestows on her a right of first refusal (as now proposed on appeal). If the will had dictated the 

complete and mandatory terms of an offer to sell stock to her, there would be no need to address 

the possibility of sale to another party by providing her a right of first refusal.

As stated above, on the record before us we cannot conclude, as a matter of law, that the 

executor has no legal obligation to sell the VIP stock to McKay in accordance with the testator’s 

wishes. But the record before us likewise does not allow us to conclude, as a matter of law, that 

the executor is legally obligated to sell to McKay. The will anticipates that additional terms would 

need to be negotiated to effectuate the testator’s intent, and McKay’s motion does not establish as 

a matter of law that there could be no “tax considerations” or other transactional details that might 

be, from the reasonable perspective of the estate, a legitimate obstacle to carrying out the testator’s 

wishes. Likewise, McKay’s motion does not establish that the executor owed her any fiduciary 

duty, nor does it eliminate the possibility that the executor is actually fulfilling her fiduciary duties 

to the will’s beneficiaries by pursuing a different strategy of distributing the estate. We therefore 

overrule McKay’s appeal to the extent she challenges the trial court’s denial of her motion for 

summary judgment.
16

Conclusion

In summary, although the parties presented cross-motions for summary judgment based on 

their opposed interpretations of the executor’s duties under the will, neither party carried her 

burden to justify summary judgment. Read as a whole, the will demonstrates the testator’s intent 

to distribute a substantial part of his estate through the sale of stock to his business partner, McKay. 

Because McKay wants to buy the stock, she has standing to advocate on behalf of her interest in 

the administration of the estate. That said, neither party has presented a record to support judgment 

in her favor as a matter of law. Standing alone, the will does not support conclusions either that 

the executor had no legal obligation to sell the stock in accordance with the testator’s wishes, nor 

that the executor is subject to a mandatory obligation to sell. Accordingly, we reverse the judgment 

of the trial court and we remand the case for further proceedings.

MICHAEL MASSENGALE, Visiting Justice

August 27, 2020

Before Rodriguez, J., Palafox, J., and Massengale, J. (Visiting Justice)

Massengale, J. (Visiting Justice), sitting by assignment
17

Appendix

LAST WILL AND TESTAMENT

OF

REVY L. WHARTON

* * *

ARTICLE I. SPECIFIC GIFTS

Section 1.01 - Intent Regarding California Business:

A. Sale to Louise McKay With Right of First Refusal.

I am the principal owner of Valley Improvement Programs, Inc. of Rancho 

Cucamonga California (the “Company”). It is my desire, subject to tax 

considerations and other considerations to be worked out among the interested 

parties that, after my death, all of my majority ownership interest in the Company 

be sold to Louise McKay as described in subparagraph B. immediately below on 

terms reasonably negotiated. If Louise McKay acquires said company and then 

decides to sell all or part of it to a third party, William A. Wharton, Lucille S. 

Bode and Lawrence R. Wharton, shall, collectively and individually, have a right 

of first refusal to purchase the entire business, or the portion she wishes to sell, from 

Louise McKay for the purchase price she paid for it in the first instance taking into 

account any enhancement of the Company Said right must be exercised and closed 

within six (6) months after Louise McKay gives written notice to William A. 

Wharton, Lucille S. Bode and Lawrence R. Wharton of her intent to sell.

B. Distributions.

It is also my desire that matters be structured so that the business pays my 

daughter, Lucille S. Bode, a net $50,000.00 a year for 10 years after my death at 

no interest. It is my further wish that my son, Lawrence R. Wharton, receive 

$25,000.00 per year for 10 years after my death at no interest from the Company 

which is in addition to the gift in Section 1.02 to him. When these payments have 

been made and Lucille S. Bode and Lawrence R. Wharton have received 

$500,000.00 and $250,000.00 respectively whether over a ten (10) year period or 

less, Louise McKay’s purchase price for all of my majority ownership interest shall 

be paid in full. It is my further desire that the Company continue to pay my brother, 

William A. Wharton, his salary of $150,000.00 a year, provided that the obligation 

of the Company to pay this amount in either the form of salary or pension only 

exists as long as my brother is alive, notwithstanding anything contained herein to 

the contrary, and is also subject to the continuing profitability of the Company.
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C. Application of Distribution.

Further I desire that things be structured so that the monies paid to Lucille 

S. Bode by Valley Improvement Programs, Inc. are all applied to all or part of the 

purchase price for the business by Louise McKay. If either of Lucille S. Bode or 

Lawrence R. Wharton shall die during the ten (10) year payment period, or less, 

for each as prescribed herein, I direct that the survivor of them shall receive the 

monies otherwise to have been paid to his or her deceased sibling.

D. Expedite Distributions If Possible.

It is my intent that since, upon my death, I will no longer be receiving 

distributions from the Company that distributions to both of Lucille S. Bode and 

Lawrence R. Wharton be expedited as may be practicable. Thus, I desire that 

Lucille S. Bode receive $50,000.00 or more per year and Lawrence R. Wharton

receive $25,000.00 or more per year and, I no longer intend for there to be a ten 

(10) year time limit on distributions to either one of them. If the economics, for 

whatever reason, do not justify stepping up the amounts or duration of these 

distributions, then it is my request that they be kept at the $50,000.00 and 

$25,000.00 respectively for each of Lucille S. Bode and Lawrence R. Wharton

for the respective ten year periods previously set forth in this Section.

E. Non-Competition

During the pendency of the distributions to Lucille S. Bode and Lawrence 

R. Wharton, none of Lucille S. Bode, Lawrence R. Wharton or Louise McKay

may compete against the Company or its programs in any way either individually 

or with any affiliated entity. If any of them does compete against the Company, the 

purchase of the Company will be then and there be null and void.

F. Working Capital

In addition to the parameters for the purchase of the Company by Louise 

McKay she must also pay to Lucille S. Bode, William A. Wharton, and 

Lawrence R. Wharton the amount of the working capital on the books at the date 

of my death in equal shares.

Section 1.02 - Gift to Lawrence R. Wharton

I give the sum of $40,000.00 to my son, Lawrence R. Wharton.

* * *
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Section 1.05 - Real Property

I give the proceeds of sale of my ten acre desert property in Newberry 

Springs, California in the following percentages, to wit: William A. Wharton and 

Lucille S. Bode shall each receive an undivided one-half of seventy-five (75%) of 

the proceeds and the remaining twenty-five (25%) shall belong to Lawrence R. 

Wharton.

ARTICLE II. DISPOSITION OF RESIDUARY ESTATE

I give my Residuary Estate as follows:

(a) To Lucille S. Bode;

(b) And, if Lucille S. Bode does not survive me, then to 

William A. Wharton and Lawrence R. Wharton in equal 

shares;

(c) And, if William A. Wharton does not survive me, to 

Lawrence A. Wharton, and if Lawrence A. Wharton does 

not survive me, to his then living descendants who shall take 

by representation.

ARTICLE III. EXECUTORS AND ADMINISTRATION OF ESTATE

Section 3.01 - Appointment of Executor:

I appoint Lucille S. Bode as Independent Executor of my will and estate. If 

Lucille S. Bode fails or ceases for any reason to serve as Independent Executor, 

then I appoint William A. Wharton to serve as Independent Executor of my will 

and estate. If William A. Wharton is unable to serve as Trustee, I appoint Steven 

Wilcox to serve as Independent Executor of my will and estate.

* * *
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ARTICLE IV. DEFINITIONS AND GENERAL PROVISIONS

* * *

Section 4.02 - Certain Definitions:

As used in this will, the following words and phrases shall have the 

following meanings:

* * *

(g) “give” means give, devise and bequeath.

* * *

Section 4.05 - Effect of Captions:

The captions of the various articles, sections and paragraphs of this will 

have been inserted for convenience of reference only, and the same shall not in any 

manner be taken into account in construing or interpreting this will.

* * *