OPINION

No. 04-09-00777-CV

IN THE ESTATE OF WILBUR WALDO LYNCH, Deceased

From the County Court at Law, Kendall County, Texas

Trial Court No. 05-090-PR

Honorable Bill R. Palmer, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Marialyn Barnard, Justice

Delivered and Filed: April 20, 2011

AFFIRMED

This appeal arises from a will contest over the 2003 will of Wilbur Waldo Lynch. Wilbur 

had three daughters: Peggy Sackheim, Patricia Alderman, and Tracy Lynch. Wilbur died in July 

2005, and Tracy filed an application to probate the 2003 will. After it was admitted to probate, 

Peggy and Patricia contested the will on the grounds that their father lacked testamentary 

capacity to execute the 2003 will and he executed it as a result of undue influence by Tracy. A 

jury returned a verdict in favor of Peggy and Patricia and awarded them their attorney’s fees. 

Although the jury found that Tracy incurred over $600,000 in reasonable and necessary 

attorney’s fees, it found she did not act in good faith and with just cause in defending the 2003

will. Based on the jury’s verdict, the trial court set aside the order probating the 2003 will, 
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admitted the 2001 will to probate, granted Peggy and Patricia their attorney’s fees, and denied 

Tracy’s request for attorney’s fees. Tracy now appeals.

BACKGROUND

Wilbur had a career that included flying planes during World War II, working for Pan 

American World Airways, and running a small oil and gas business. He and his wife’s two 

eldest daughters, Peggy and Patricia, were sixteen and fourteen years, respectively, older than 

their youngest daughter, Tracy. In 1995, Wilbur suffered a stroke. Patricia, who lives in Florida, 

began to travel to Wilbur’s home in Boerne, Texas once a month for six and one-half years to 

assist Wilbur with his business. Peggy lives in Arizona, and Tracy lives in Texas. 

In March 2000, Wilbur’s wife died. After her mother’s death, Tracy and her children 

moved in with Wilbur to care for him. By this time, Wilbur needed help with everything, 

including bathing and eating. He could not read, and he needed help using the telephone or the 

television. 

In November 2000, Wilbur filed an “affidavit” at the courthouse giving Tracy his house. 

In April 2001, the entire family met with an estate planning attorney, John Bakke, and Wilbur 

created an inter vivos trust that required the unanimous consent of his three daughters to dispose 

of his property. Additionally, Wilbur executed the 2001 will that left his estate in equal shares to 

his three daughters upon his death. He also filed a deed giving Tracy the house. 

In May 2001, a caregiver was hired to come to Wilbur’s house on weekdays. Sherri 

Zaskoda, an experienced geriatric nurse’s aide, took Wilbur to his doctor’s appointments, filled 

his prescriptions, prepared some meals, and ensured Wilbur and his home were clean. Zaskoda 

was with Wilbur forty hours per week for more than two years. According to Zaskoda, Wilbur 
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had good days and bad days, and none of his doctors discussed the possibility that he suffered 

from dementia.

In 2003, William Leighner, the attorney who prepared the 2003 will, hired Dr. Raymond 

Costello, a clinical psychologist, to conduct a testamentary capacity evaluation of Wilbur. At the 

conclusion of the evaluation, Dr. Costello “saw no reason to question [Wilbur’s] competency to 

execute his Last Will and Testament at this time or for the foreseeable future within the next few 

months if no untoward medical situations occur.” Four days later, Wilbur executed the 2003 

will. Wilbur died in 2005 at the age of ninety-two.

DOES A FINDING THAT A TESTATOR LACKS TESTAMENTARY CAPACITY 

CONFLICT WITH A FINDING THAT HE WAS UNDULY INFLUENCED

In answer to jury question number one, the jury found that Wilbur did not have 

testamentary capacity when he executed the 2003 will.1

 In answer to jury question number two, 

the jury found that at the time Wilbur executed the 2003 will, he was acting under the undue 

influence of Tracy.2

 1 The jury was instructed that “testamentary capacity” means “sound mind. It is the required legal capacity to make 

a Will and means that a person, when signing a Will, must have the sufficient mental ability to:

 In her first issue, Tracy asserts these findings create an irreconcilable 

conflict because a person cannot both lack testamentary capacity and be unduly influenced. She 

argues these findings implicate the same material fact: a person’s mental capacity. In a related 

issue, Tracy asserts the trial court erred by admitting into evidence the testimony of appellees’ 

expert, Dr. Martha Leatherman, a geriatric psychiatrist, because Dr. Leatherman failed to 

1. Understand the business in which he is engaged;

2. Understand the effect of his act in making a Will;

3. Know his next of kin and the objects of his bounty and their claims upon him;

4. Understand the general nature and extent of his property; and

5. Have sufficient memory to collect in his mind the elements of the business to be transacted, to 

hold them long enough to perceive, at least their obvious relation to each other, and to be able to 

form a reasonable judgment as to them.”

2 The jury was instructed that “undue influence” means: “(1) the existence of an influence; (2) that subverts or 

overpowers the mind of the testator at the time of the execution of the will; and (3) the will would not have been 

signed by the testator but for such influence.”
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recognize that lack of testamentary capacity and undue influence are mutually exclusive.3

Lack of testamentary capacity and undue influence are two distinct grounds for avoiding 

a will. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex. 1963); Long v. Long, 133 Tex. 96, 125 

S.W.2d 1034, 1036 (1939). Many courts, including this one, have relied without further analysis 

on Rothermel for the proposition that a finding of testamentary incapacity and undue influence 

are in conflict. See, e.g., Lowery v. Saunders, 666 S.W.2d 226, 229 n.2 (Tex. App.—San 

Antonio 1984, writ ref’d n.r.e.) (stating in a footnote “that the testatrix lacked testamentary 

capacity and that she was unduly influenced are in conflict”). In Rothermel, the Texas Supreme 

Court stated that “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 

dominant influence or power.”

 Tracy 

asserts Dr. Leatherman’s opinion that a person can lack testamentary capacity and be unduly 

influenced has been rejected by both the Texas Supreme Court and this court. Therefore, 

according to Tracy, because Dr. Leatherman’s opinion “is contrary to established, black-letter 

law,” it is entitled to no weight and her testimony amounts to “no evidence.” 

4

 3 Tracy also contends Dr. Leatherman’s opinion is unreliable because her methodology was flawed. Tracy did not 

argue this complaint during the Daubert challenge hearing; therefore, it is waived. See Coastal Transp. Co. v. 

Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (holding “when a reliability challenge requires the 

court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must 

be timely made so that the trial court has the opportunity to conduct this analysis”). 

 369 S.W.2d at 922. The Rothermel Court relied on its opinion 

4 The Rothermel Court stated as follows:

Undue influence in the procurement of a testament is a ground for its avoidance separate and 

distinct from the ground of testamentary incapacity; for 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 dominant influence or power. Thus, before a testament may be 

set aside on the grounds of undue influence the contestant must prove: (1) the existence and 

exertion of an influence; (2) the effective operation of such influence so as to subvert or 

overpower the mind of the testator at the time of the execution of the testament; and (3) the 

execution of a testament which the maker thereof would not have executed but for such influence. 

369 S.W.2d at 922 (internal citations omitted). 
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in Long, which stated that “[u]ndue influence in its essential elements has no real relation to 

mental incapacity.” 125 S.W.2d at 1036. “Mental incapacity implies the lack of intelligent 

mental power; while undue influence implies within itself the existence of a mind of sufficient 

mental capacity to make a will, if not hindered by the dominant or overriding influence of 

another in such a way as to make the instrument speak the will of the person exercising undue 

influence, and not that of the testator.” Id.

We acknowledge that the Supreme Court has recognized that a finding of undue 

influence implies the existence of a sound mind. However, neither the Texas Supreme Court nor 

this court has held that a finding of undue influence requires the existence of sound mind. In 

fact, the Long Court recognized that “weakness of mind and body, whether produced by 

infirmities of age or by disease or otherwise, may be considered as a material circumstance in 

determining whether or not a person was in a condition to be susceptible to undue influence.” Id. 

Even in Lowery, a panel of this court recognized that “evidence of impaired mentality not 

amounting to testamentary incapacity may afford an opportunity for the exercise of undue 

influence . . . .” 666 S.W.2d at 233. In that case, this court upheld the trial court’s finding that 

the testatrix lacked testamentary capacity, but stated “[i]f, however, we are wrong about 

testatrix’s lack of testamentary capacity, we are, nevertheless, convinced that there is evidence 

showing that an impaired mental condition existed which made likely through influence of 

another the destruction of testatrix’s free agency and free will and the substitution of the other’s 

will so as to cause the testatrix to do what she otherwise would not have done but for such 

other’s influence.” Id. The Lowery court concluded that “a finding of undue influence is 

appropriate where it is shown that the testatrix is laboring under an impaired mental condition 

not amounting to actual testamentary incapacity at the time of the will’s execution.” Id. at 235.
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From these cases, we conclude that testamentary incapacity and undue influence are not 

necessarily mutually exclusive; in fact, one (incapacity) may be a factor in the existence of the 

other (undue influence). Accordingly, we are unwilling to hold that in all cases a person cannot 

both lack testamentary capacity and be unduly influenced. Thus, we conclude an expert, such as 

Dr. Leatherman, is not precluded from opining on both questions. 

Furthermore, we conclude the jury’s affirmative findings on those questions are not in 

irreconcilable conflict. “The test for determining whether an irreconcilable conflict between 

issues exists is whether one finding alone requires judgment in the plaintiff’s favor and the other 

finding taken alone requires judgment in the defendant’s favor.” Alamo Cmty. Coll. Dist. v. 

Browning Constr. Co., 131 S.W.3d 146, 166 (Tex. App.—San Antonio 2004, pet. denied); see 

also Gainsco County Mut. Ins. v. Martinez, 27 S.W.3d 97, 102 (Tex. App.—San Antonio 2000, 

pet. dism’d) (conflicting findings require reversal only if one of the conflicting findings 

necessarily requires a judgment different from the trial court’s judgment). “Or, as one court 

phrased it: ‘To determine whether there is reversible error, the appellate court must only decide 

whether the conflict is such that one answer would establish a cause of action or defense, while 

the other would destroy it.’” Alamo Cmty, 131 S.W.3d at 166 (citation omitted). 

In this case, an affirmative answer on either one of the two questions requires a finding in 

favor of appellees, while a negative answer on only one does not destroy the appellees’ case. 

Therefore, the findings do not irreconcilably conflict. Accordingly, we overrule Tracy’s first and 

second issues.

SUFFICIENCY OF THE EVIDENCE

In her third issue, Tracy asserts the evidence is legally and factually insufficient to 

support the jury’s findings on testamentary capacity and undue influence. Because we overrule 
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Tracy’s second issue regarding Dr. Leatherman’s opinion, the following review of the record 

includes her testimony. 

When, as here, a contest is filed after a will has been admitted to probate, the burden of 

proof is on the contestant to show by a preponderance of the evidence that the will is invalid. 

Lee v. Lee, 424 S.W.2d 609, 610 n.1 (Tex. 1968). The test for legal sufficiency is “whether the 

evidence at trial would enable reasonable and fair-minded people to reach the verdict under 

review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In making this 

determination, we credit favorable evidence if a reasonable fact-finder could, and disregard 

contrary evidence unless a reasonable fact-finder could not. Id. If the evidence falls within the 

zone of reasonable disagreement, then we may not substitute our judgment for that of the factfinder. Id. at 822. The fact-finder is the sole judge of the credibility of the witnesses and the 

weight to give their testimony. Id. at 819. In reviewing a factual sufficiency challenge, we 

consider and weigh all of the evidence supporting and contradicting the challenged finding and 

set aside the finding only if the evidence is so weak as to make the finding clearly wrong and 

manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, Inc. v. U.S. 

Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

Testamentary capacity means that a party must have sufficient mental ability to: (1) 

understand the business in which he is engaged; (2) understand the effect of the act in making a 

will; (3) understand the general nature and extent of his property; (4) know his next of kin and 

the natural objects of his bounty and the claims upon him; and (5) collect in his mind the 

elements of the business to be transacted and hold them long enough to perceive their obvious 

relation to each other and to form a reasonable judgment about them. See Prather v. 

McClelland, 76 Tex. 574, 13 S.W. 543, 546 (1890); Tieken v. Midwestern State Univ., 912 
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S.W.2d 878, 882 (Tex. App.—Fort Worth 1995, no writ). Evidence of incapacity at other times 

may be used to establish incapacity on the day the will was executed if it “demonstrates that [the]

condition persists and ‘has some probability of being the same condition which obtained at the 

time of the will[’]s making.’” Lee, 424 S.W.2d at 611; see also Croucher v. Croucher, 660 

S.W.2d 55, 57 (Tex. 1983). Thus, the evidence adduced by the appellees in this case must pass 

two tests. First, was the evidence of the kind that would indicate lack of testamentary capacity?

Second, if so, was that evidence probative of Wilbur’s capacity, or lack thereof, on April 8, 2003, 

when the contested will was executed?

On appeal, Tracy argues that Wilbur understood the purpose and effect of signing the 

2003 will, which was to pass his assets to his heirs upon his death, and he specifically stated the 

reason he was executing the 2003 will was because “one of [his] daughters has challenged it . . . 

[s]he wants money and I don’t have any money . . . I’ve given her a bundle of it, but she wants 

more.” In support of her argument that the evidence is legally and factually insufficient to 

support a finding that Wilbur lacked testamentary capacity, Tracy relies, in part, on the 

testamentary capacity examination conducted by Dr. Raymond Costello, a clinical psychologist, 

four days before the 2003 will was executed. Dr. Costello did not review any medical records; 

instead, he spoke with Wilbur and conducted tests, all while at Wilbur’s home and in the 

presence of Tracy and her son. Dr. Costello explained his practice was to have a family member 

present in case health issues arose. Dr. Costello described Wilbur as neat, clean, affable, and 

articulate. On one of the tests, Wilbur scored: (1) 37 for attention, which is six points above the 

minimum for possible problems in people ages sixty-five to eighty-one; (2) 14 on verbal fluency, 

which is one below the minimum; and (3) 37 on a conceptualization test, which is six points 

above average. According to Dr. Costello, Wilbur did very well on two memory tests. Dr. 
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Costello concluded Wilbur comprehended the nature and reasons for the evaluation and fully 

appreciated the information supplied in the informed consent. However, he also conceded that 

the test Wilbur failed indicated his stroke had affected the frontal lobe of his brain, which 

controls a person’s ability to make decisions, process information, sequence information, and 

understand new concepts. Dr. Costello said he knew nothing about the specifics of the 2003

will, including that Tracy would be the primary beneficiary. Dr. Costello agreed Tracy had 

influence over Wilbur, but it was not for him to say to what degree. 

The appellees rely on the testimony of Dr. Leatherman, a geriatric psychiatrist who 

diagnoses and treats elderly patients with issues of dementia, memory loss, Alzheimer’s, and 

depression associated with aging. The average age of her patients is eighty to eighty-two years 

old. Dr. Leatherman never met Wilbur; instead, for the purpose of testifying on behalf of the 

appellees, she reviewed all of his medical records and the depositions of his three daughters, his 

sister, a caregiver, Dr. Costello, the lawyer who prepared the 2003 will, and Dr. Arambula, the 

forensic psychiatrist retained by Tracy. She also spoke to Wilbur’s treating physician. 

According to Dr. Leatherman, Wilbur’s medical records document his stroke, problems in his 

brain pathology and his ability to think, as well as that he suffered from dementia and memory 

loss. She also reviewed depositions describing how he behaved and acted. Dr. Leatherman 

explained because there are no lab tests or blood tests that detect dementia, psychiatrists must 

rely on abnormalities in a person’s behavior. Therefore, the diagnostic “gold standard” in 

psychiatry is the clinical examination. However, she also stated that a retrospective analysis of 

records is a generally accepted method when testifying about testamentary capacity and undue 

influence because the person is generally already deceased and cannot be examined. 
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According to Dr. Leatherman, people with dementia often have good days and bad days. 

In her opinion Wilbur suffered from cerebrovascular disease on April 8, 2003. She said he was 

diagnosed with dementia both prior to and after April 8, 2003. “And it doesn’t go away. It 

doesn’t get better.” Dr. Leatherman explained that the dementia caused by the cerebrovascular 

disease affects testamentary capacity. Although no medical record specifically stated Wilbur 

suffered from dementia on April 8, 2003, his medical records document that he suffered from 

dementia prior to and after 2003. Based upon these records, Dr. Leatherman concluded he 

suffered from dementia on April 8, 2003 because he had already had irreversible strokes that led 

to a diagnosis by his neurologist that he had dementia. He also evidenced progressive vascular 

disease and his level of functioning continued to decline from before the will was executed until 

after it was executed. She said he had memory loss and “thinking problems” as early as 2001, 

and he went into special treatment to try to improve his memory in 2001. Because the disease 

does not come and go, Dr. Leatherman opined that if Wilbur had progressive brain disease 

before the will’s execution, he had it on the date the will was executed. When asked about the 

type of dementia Wilbur suffered, Dr. Leatherman explained that the death certificate showed the 

cause of death as senile dementia, which is an “umbrella term that means dementia associated 

with aging.” 

Dr. Leatherman also stated that the area of the brain in which Wilbur suffered his stroke 

is an area in which “executive function” is common and that dementia almost always affects 

executive function. Dr. Leatherman described executive function as that part of the brain “that 

does everything,” including taking information from other parts of the brain and acting on the 

information, making “the decisions for the rest of the brain,” and helping “the brain plan and 

sequence and prioritize.” She testified that executive function is related to testamentary capacity 
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because it relates to holding multiple pieces of information in one’s mind, having insight and 

judgment, and then manipulating all the information and data. She believed Wilbur had impaired 

executive function on April 8, 2003 based on the diagnosis of dementia before and after the 

will’s execution, as well as the medical records showing the location of the strokes as affecting 

the executive function area of the brain. She believed the impaired executive function was 

caused by his cerebrovascular disease and dementia, as well as the strokes. 

Dr. Leatherman was critical of Dr. Costello’s examination of Wilbur because it was 

conducted in the presence of Tracy and one of Tracy’s children. According to Dr. Leatherman, 

the presence of another person in the room, especially one with a stake in the outcome of the 

examination, might invalidate the results because of subtle cues (e.g., disapproval). She also 

pointed to inconsistent answers Wilbur gave to some of Dr. Costello’s questions. For example, 

when asked by Dr. Costello why he was preparing his will, Wilbur answered, “Because one of 

my daughters has challenged it. She wants money and I don’t have any money. I’ve given it all 

away. I’ve given her a bundle of it, but she wants more.” Dr. Leatherman believed there were 

several internal inconsistencies in this statement: if he has no money, why is he making a will; 

and, at this time, no one had contested the will because it had not yet been executed.5

 She also 

noted that Wilbur was a financially sophisticated man throughout his life, having been successful 

in at least two very different industries, but he provided only a rudimentary list of his assets: 

“stocks, retirement bonds, Wilson County oil patch-8 wheels, and 2 cars.”6

 5 Dr. Costello agreed there were inconsistencies between the answers Wilbur gave him and the will. 

 Dr. Leatherman said 

this was consistent with frontal brain lobe problems and dementia. In answer to Dr. Costello’s 

question of whether “testator’s description of estate seems realistic and/or match [sic] description 

6 Tracy contends Wilbur recognized the general nature and extent of his property and he did not provide more detail 

in answer to Dr. Costello’s question because Dr. Costello did not ask for more detail.
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from collateral source,” the only collateral source listed was Tracy, who, according to Dr. 

Leatherman, “was sitting in on the evaluation” and “had a vested interest in making him look 

good for the evaluation.” She believed the collateral source should have been a non-interested 

source, such as bank statements and other family members.

Dr. Leatherman also noted that when identifying his family, Wilbur omitted one of his 

grandchildren by Peggy and two of his great-grandchildren by Patricia who were frequent 

visitors.7

Wilbur also mentioned his sister, Carolyn Watts, as “my little sister, and I love her.” But 

Carolyn was not mentioned in the will, and was not mentioned as a potential guardian or as 

someone responsible for his remains. On the other hand, despite never mentioning to Dr. 

Costello the name Lovika DeKoninck, who is a long-time friend of Tracy’s, Wilbur designated

DeKoninck in the 2003 will to serve as trustee of his estate if any beneficiary is under the age of 

thirty. In another document, Wilbur names DeKoninck as the first alternate guardian (after 

Tracy) of his person and estate in the event a guardianship becomes necessary. Wilbur answered 

“not applicable” when asked by Dr. Costello how he intended to include friends, acquaintances, 

and organizations. However, in his will, he left one half of his estate to an Austin, Texas 

German shepherd dog rescue and the other half to a Houston, Texas German shepherd dog 

rescue if Tracy and her children predeceased him. 

 When asked to describe the role of each family member in his life, Wilbur responded, 

“Peggy is a stranger. She just stands by and wants money.” Dr. Leatherman was critical of the 

lack of follow-up questions by Dr. Costello because, according to her, delusions or 

misperceptions are common with dementia and the lack of follow-up did not test whether 

Wilbur’s statement was due to a misperception. 

 7 Tracy argues Wilbur did not list all of his grandchildren because Dr. Costello did not ask Wilbur to do so.
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Dr. Leatherman thought this was significant because it indicated Wilbur either did not 

remember on the date of Dr. Costello’s evaluation that he wanted to include a distant 

acquaintance (DeKoninck) and German shepherd rescue organizations in his will or he did not 

know when he made the will what he had said four days earlier. Dr. Leatherman said this 

amounted to poor memory, poor ability to hold a lot of information in his mind, and poor ability 

to make rational decisions and communicate those decisions. When asked if he knew how he 

wanted to dispose of his property, Wilbur said the house was already deeded to Tracy and the 

remaining assets were to be placed in trust with Tracy as the trustee. However, four days later 

when he executed the will, the will states in bold capital letters that his remaining assets would 

be distributed to Tracy “Outright and free from trust.”

Dr. Leatherman said the 2003 will was not consistent with Wilbur’s responses during the 

testamentary capacity evaluation for the following reasons: (1) he told Dr. Costello he had no 

other significant relationships or organizations, but under the will he gave the remainder of his 

estate to two German shepherd dog rescue organizations if the named beneficiaries predeceased 

him; and (2) he told Dr. Costello he wanted his assets held in trust, but under the will he directed 

that all remaining assets and accumulated income of the Wilbur Waldo Lynch Trust be 

distributed outright and free from trust to Tracy. She thought it significant that William 

Leighner, the attorney who drafted the 2003 will, was the person who found the German 

shepherd rescue organizations, not Wilbur.8

 8 Leighner described Wilbur’s “wonderful” conversational abilities, and he said Wilbur talked about his dogs and 

about how his father came from Limerick, Ireland. However, Wilbur’s father was born in Alabama. According to 

Dr. Leatherman this type of fabrication was secondary to his dementia. 

 Leighner stated in a memo that Wilbur wanted to 

favor Tracy who after his wife’s death “came immediately to take care of him and has lived with 

him ever since.” However, Dr. Leatherman said that what was omitted is the fact that Patricia
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came once a month for one week to help with his finances. Therefore, according to Dr. 

Leatherman, Wilbur did not know what he was signing when he executed the 2003 will because 

it was a complicated will, containing a lot of information. She believed Wilbur was 

incapacitated on April 8, 2003 to the extent that he was incapable of understanding the nature 

and extent of his property or the complex financial structure around which he had built his assets. 

She also believed Wilbur was incapacitated on April 8, 2003 to the extent that he was incapable 

of recognizing his heirs or knowing their relationship to him and to each other. Finally, she 

believed he was unaware of some of the objects of his bounty. 

Based on a review of all the evidence, we conclude the evidence is legally and factually 

sufficient to support the jury’s finding that Wilbur lacked testamentary capacity when he 

executed the 2003 will. Therefore, we do not address the sufficiency of the evidence in support 

of the undue influence finding. 

ATTORNEY’S FEES

When any person designated as executor or as a beneficiary in a will or an alleged will 

“defends [the will] or prosecutes any proceeding in good faith, and with just cause, for the 

purpose of having the will or alleged will admitted to probate, whether successful or not, he shall 

be allowed out of the estate his necessary expenses and disbursements, including reasonable 

attorney’s fees, in such proceedings.” TEX. PROB. CODE ANN. § 243 (West 2003). 

The jury found that Tracy incurred over $600,000 in “reasonable and necessary” 

attorney’s fees. However, because the jury also found that Tracy did not act “in good faith and 

with just cause in defending the April 8, 2003 will,” the trial court denied payment of her fees 

out of the estate. On appeal, Tracy asserts the evidence supporting the jury’s finding that she did 

not act with good faith and just cause is legally and factually insufficient. 
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The jury was instructed that “good faith” means “an action which is prompted by honesty 

of intention or a reasonable belief that the action was probably correct.” The jury was further 

instructed that “with just cause” means “that the action of the person was based on reasonable 

grounds and there was a fair and honest cause or reason for the actions. The term . . . includes 

probable cause.” Based upon the evidence recited above on the issue of testamentary capacity, 

we conclude the evidence supporting the jury’s implied findings that Tracy’s actions were not 

prompted by honesty of intention or with a reasonable belief that her action was probably correct 

and that Tracy’s actions were not based on reasonable grounds and there was no fair and honest 

cause or reason for her actions are supported by sufficient evidence.

Tracy also asserts the finding that she did not act in good faith or with just cause conflicts 

with the jury’s finding that her attorney’s fees were reasonable and necessary. This complaint is 

waived because Tracy did not raise it before the jury was discharged. See Torres v. Caterpillar, 

Inc., 928 S.W.2d 233, 244 (Tex. App.—San Antonio 1996, writ denied) (holding that complaint 

that jury findings irreconcilably conflict is waived if it is not made before jury is discharged); see 

also TEX. R. CIV. P. 295.

CONCLUSION

We overrule Tracy’s issues on appeal and affirm the trial court’s judgment.

Sandee Bryan Marion, Justice