Affirmed and Memorandum Opinion filed July 21, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00291-CV

IN THE ESTATE OF RUTH BAILEY, DECEASED

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 415,772

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

In this appeal from a will contest, the appellants contend that the trial court 

erred in granting summary judgment against them, because they raised genuine 

issues of material fact regarding the deceased’s testamentary capacity. Finding no 

error in the judgment, we affirm.

I. BACKGROUND

Ruth Bailey died in 2008 and was survived by four daughters: Iona Grant, 

Loretta Moss, Nannie Johnson, and Effie Collins. Grant sought to probate a will 

dated March 18, 2005, and Collins contested the will on the ground, inter alia, that 
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Bailey lacked testamentary capacity on the date the will was executed. Collins 

also sought to probate an earlier will, and her sisters contested her application. The 

two actions were consolidated, but in this appeal, the parties discuss only the 

rulings on Grant’s application to probate the 2005 will. 

Collins filed a traditional motion for partial summary judgment on the 

ground that Bailey lacked testamentary capacity on the date that the 2005 will was 

executed. The motion was supported by a certified copy of a capacity assessment 

performed by Dr. Shayna P. Lee on August 3, 2004 and filed in a guardianship 

proceeding concerning Bailey. Dr. Lee diagnosed Bailey with depression and 

dementia, and stated that the patient was severely incapacitated, requiring roundthe-clock care except when sleeping. Dr. Lee reported that Baily “was unaware of 

the day and year, the place, or the nature of the evaluation”; that “[h]er memory 

was very poor for remote, recent and immediate recall”; and that Bailey “cannot 

answer any questions that are relative to her history and life.” Dr. Lee further 

stated that Bailey “is completely unable to communicate any responsible 

decisions,” and that “the dementia process is not expected to improve, and will 

worsen over time.”

Grant, Moss, and Johnson filed a response to the summary-judgment motion 

and attached the affidavits of Grant, Moss, and two disinterested individuals, each 

of whom was present when Bailey executed the 2005 will. The trial court granted 

Collins’s motion for partial summary judgment, and ultimately rendered judgment 

in Collins’s favor on her application to probate an earlier will. Grant, Moss, and 

Johnson challenge the ruling on the partial summary judgment, on which the final 

judgment was partially based.1

 

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Specifically, the trial court noted in the final judgment that the 2004 will, which was 

offered for probate by Collins, had not been revoked, i.e., by the 2005 will that Grant 
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II. STANDARD OF REVIEW

A movant for traditional summary judgment has the burden of showing that 

there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, 

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant initially 

establishes a right to summary judgment on the issues expressly presented in the 

motion, then the burden shifts to the nonmovant to present to the trial court any 

issues or evidence that would preclude summary judgment. See City of Houston v. 

Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). In considering 

grounds for reversal, we are limited to those grounds expressly set forth in the 

summary-judgment motion, answers, or other responses, and may not rely on 

grounds raised in the appellate briefs or summary-judgment evidence. See 

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). We 

then review the summary judgment de novo, considering all the evidence in the 

light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if a reasonable factfinder could, and disregarding contrary evidence 

unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 

S.W.3d 572, 582 (Tex. 2006).

III. TESTAMENTARY CAPACITY

In a will contest on the ground that the testator lacked testamentary capacity, 

the relevant inquiry focuses on the condition of the testator’s mind on the day the 

will was executed. See Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). A prima 

facie case of incapacity can be established by evidence that the testator was 

incompetent at other times, but “only that evidence of incompetency at other times 

has probative force which demonstrates that that condition persists and ‘has some 

 

unsuccessfully sought to probate.
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probability of being the same condition which obtained at the time of the will[’]s 

making . . . .’” Id. (quoting 1 MCCORMICK & RAY, TEXAS LAW OF EVIDENCE § 896 

(2d ed. 1956)); see also Evans v. Allen, 358 S.W.3d 358, 367 (Tex. App.—Houston 

[1st Dist.] 2011, no pet.) (“We consider this evidence ‘if it demonstrates that a 

condition affecting the individual’s testamentary capacity was persistent and likely 

present at the time the will was executed.’” (quoting Bracewell v. Bracewell, 20 

S.W.3d 14, 22 (Tex. App.—Houston [14th Dist.] 2000, no pet.))).

Collins presented such evidence in the form of Dr. Lee’s capacity 

assessment. This evidence was sufficient to meet Collins’s summary-judgment 

burden, and the appellants do not contend otherwise. Thus, the burden shifted to 

them to produce evidence sufficient to raise a genuine issue of material fact. 

In the sole issue presented in this appeal, Grant, Moss, and Johnson contend 

that the four affidavits they produced in response to Collins’s summary-judgment 

motion contained evidence sufficient to raise a genuine issue of material fact 

regarding Bailey’s testamentary capacity on the day that she executed the will. 

They fail to mention, however, that the trial court sustained Collins’s objections to 

all four affidavits. Specifically, Collins objected that all four affidavits were 

conclusory. See In re Lipsky, 460 S.W.3d 579, 592–93 (Tex. 2015) (orig. 

proceeding) (explaining that conclusory affidavits do not create fact questions and 

are insufficient to defeat summary judgment). Collins additionally objected that 

the affidavits of interested witnesses Grant and Moss contained declarations that 

were not of the kind that is capable of being readily controverted, and that Moss’s 

affidavit contradicted the sworn statements that Moss made in Bailey’s 

guardianship proceeding. Cf. TEX. R. CIV. P. 166a(c) (“A summary judgment may 

be based on uncontroverted testimonial evidence of an interested witness . . . if the 

evidence is clear, positive and direct, otherwise credible and free from 
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contradictions and inconsistencies, and could have been readily controverted.”). 

It is well-established that we cannot consider evidence that was excluded by 

the trial court unless that evidentiary ruling is timely and successfully challenged 

on appeal. See, e.g., Walker v. Schion, 420 S.W.3d 454, 457–58 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (“Because Walker does not challenge the ruling 

sustaining Schion’s objections to his affidavit and excluding that evidence from the 

trial court’s consideration, that evidence also is removed from our consideration.”);

Izaguirre v. Rivera, No. 14-12-00081-CV, 2012 WL 2814131, at *3 (Tex. App.—

Houston [14th Dist.] July 10, 2012, no pet.) (mem. op.) (“Because the trial court 

granted Rivera’s motion striking all of Izaguirre’s summary-judgment evidence 

and that ruling has not been challenged, no evidence supports Izaguirre’s appellate 

arguments.”); In re K.R.S., No. 14-07-00080-CV, 2008 WL 2520812, at *2–3 

(Tex. App.—Houston [14th Dist.] June 24, 2008, no pet.) (mem. op.) (holding that 

the reviewing court must affirm summary judgment where the appellant waited 

until it filed a reply brief to challenge one of the grounds on which the trial court 

struck its summary-judgment evidence); York v. Samuel, No. 01-05-00549-CV, 

2007 WL 1018364, at *3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, pet. 

denied) (mem. op.) (explaining that because the appellant failed to challenge the 

trial court’s ruling that affidavits relied upon were hearsay, the evidence could not 

be considered on appeal). 

Because the appellants have not challenged the trial court’s ruling sustaining 

Collins’s objections to all of their summary-judgment evidence, there is no 

evidence before us to support the appellants’ summary-judgment response. There 

accordingly is no basis on which to conclude that the appellants have raised a 

genuine issue of material fact regarding Bailey’s testamentary capacity. 
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IV. CONCLUSION

For the foregoing reasons, we overrule the sole issue presented, and we 

affirm the trial court’s judgment.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Brown, and Wise.