In the Estate of William Reese Wynn, Sr. v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-23-00187-CV

In the Estate of William Reese Wynn, Sr., Deceased

On appeal from the
County Court of Limestone County, Texas
Retired Judge Rory Olsen, presiding
Trial Court Cause No. 9043

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

Carol Lane Wynn Sorth and William Reese Wynn, Jr., appeal from the

trial court’s judgment in favor of Susan Stamps Wynn in this probate

proceeding. We will reverse and remand.

I. Background

William Reese Wynn, Sr., married Susan in 1976. At the time, William

Sr. had two children, Carol and William Jr., from a previous marriage. William

Sr. and Susan had no other children. William Sr. and Susan remained married

until William Sr.’s death on June 24, 2021.
Susan thereafter filed an application to probate the will of William Sr.

(hereinafter, the decedent) and for issuance of letters testamentary. The

decedent’s will (hereinafter, the Will) is five pages long, indicates that it was

initialed on each page by the decedent, and denotes that it was signed on

January 31, 2003, by the decedent and two witnesses. The Will states in

pertinent part:

4. EXECUTOR
A. Executor. I appoint SUSAN WYNN, as Independent
Executor of this my Last Will and Testament. . . .

....

7. NATURE OF PROPERTY PASSED UNDER THIS WILL.
It is my intention hereby to dispose of all my property of
whatsoever kind and wherever situated, whether acquired
before or after the execution of this Will, whether within or
without the State of Texas. I make the following specific
gifts:

A. I confirm to my wife my entire estate and all interest in
our community property with the exception of:
1. The sum of $25,000 to Carol L. Wynn.
2. The sum of $25,000 to William R. Wynn, Jr.

B. I give all my clothing, household furniture and
furnishings, and other tangible articles of a personal
nature, or my interest in any such property not
otherwise disposed of by this Will or in any other manner
together with any insurance to my wife if she survives
me by thirty (30) days, and if she dose [sic] not, then I
give the property equally to both of my two (2) children,
Carol L. Wynn and William R. Wynn, Jr., should they
survive me by thirty (30) days.

In re Est. of Wynn Page 2
C. I intentionally disinherit any person not specifically
named in the Will.

8. WILL CONTEST PROVISION
If any beneficiary or remainderman under this Will in any
manner, directly or indirectly, contests or attacks this Will
or any of its provisions, any share or interest in my estate or
in the estate of any trust established by this Will given to
that contesting beneficiary or remainderman under this Will
is revoked and shall be disposed of in the same manner
provided herein as if that contesting beneficiary or
remainderman had predeceased me without issue.

The trial court admitted the Will to probate and appointed Susan as the

independent executrix of the Will and decedent’s estate.

Carol and William Jr. subsequently filed a will contest. Carol and

William Jr. (hereinafter, the Contestants) alleged in their petition that the Will

had been forged and/or altered. Specifically, the Contestants alleged that the

five pages of the Will are on different types of paper; the initials and signatures

on the fourth and fifth pages of the Will appear to have been made using

different ink than that used on the first, second, and third pages of the Will;

the fourth and fifth pages of the Will appear to have three sets of staple holes

while the first, second, and third pages of the Will appear to have only two sets

of staple holes; and the decedent’s initials on the third page of the Will, the

page containing the distribution of decedent’s estate, are not in the decedent’s

handwriting.

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“Additionally and/or alternatively,” the Contestants asserted in their

petition an action for a declaratory judgment to construe the Will. The

Contestants alleged that the Will’s language — “confirm to my wife my entire

estate and all interest in our community property” — is not a residuary clause.

The Contestants alleged that, instead, the Will does not contain a residuary

clause and, therefore, after the specific devises, the decedent’s residuary estate

passes by intestacy. The Contestants further asserted in their petition several

additional causes of action premised on the Contestants’ ownership of the

decedent’s property as his intestate heirs.

In response to the Contestants’ petition, Susan (hereinafter, the

Executrix) generally denied the Contestants’ allegations. The Executrix also

asserted a counterclaim for a declaratory judgment that the Contestants

violated the terms of the Will’s in terrorem clause and that any gift under the

Will to the Contestants should therefore be forfeited. The Executrix further

pleaded for attorneys’ fees under the Declaratory Judgments Act. A retired

statutory probate judge was appointed to hear the contested matters.

The Executrix then filed a no-evidence motion for partial summary

judgment on the grounds that there was no evidence to support the

Contestants’ claim that the Will had been forged or altered between its

execution and its admission to probate. The Executrix also filed a traditional

motion for partial summary judgment on the Contestants’ declaratory-

In re Est. of Wynn Page 4
judgment action to construe the Will and on the Contestants’ causes of action

premised on their ownership of the decedent’s property as his intestate heirs.

In her traditional motion, the Executrix argued that the decedent

unambiguously devised his entire residuary estate to her in the Will. The

Executrix contended that the Contestants, therefore, as a matter of law, have

no claim to the decedent’s estate as intestate heirs and that, accordingly, their

claims premised on their ownership of the decedent’s property as his intestate

heirs have no basis in law or in fact. Finally, the Executrix filed a motion to

exclude expert testimony, i.e., the Declaration of Bart Baggett, which had been

attached to the Contestants’ expert disclosures.

The Contestants filed a combined response to the Executrix’s partial

summary-judgment motions. The Contestants’ summary-judgment evidence

consisted of Baggett’s declaration, the expert opinion letter of Brett Goldstein,

the Contestants’ own declarations, and the transcript of the Executrix’s

deposition. The Contestants also filed a separate response to the Executrix’s

motion to exclude Baggett’s declaration.

A hearing was set on the Executrix’s partial summary-judgment motions

and her motion to exclude Baggett’s declaration. On the day of the hearing,

the Executrix filed a reply brief in support of each of her partial summary-

judgment motions and included objections to the Contestants’ additional

summary-judgment evidence.

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At the hearing, the trial court signed an “Order Granting [the

Executrix’s] Amended No-Evidence Motion for Summary Judgment and

Granting [the Executrix’s] Objections to Contestants’ Additional Evidence.” In

the order, the trial court granted the Executrix’s motion to exclude expert

testimony, sustained the Executrix’s objections to the Contestants’ additional

summary-judgment evidence and accordingly excluded such evidence, and

granted the Executrix’s no-evidence motion for partial summary judgment,

stating that the Executrix is entitled to judgment as a matter of law on the

Contestants’ claims of alteration and forgery. 1 The trial court also signed an
0F

“Order Granting [the Executrix]’s [Traditional] Motion for Partial Summary

Judgment.” In the order, the trial court granted the Executrix’s motion for

partial summary judgment on the Contestants’ declaratory-judgment action to

construe the Will and on the Contestants’ causes of action premised on their

ownership of the decedent’s property as his intestate heirs, stating that the

Executrix is entitled to judgment as a matter of law on the Contestants’ request

for declaratory judgment that the residuary estate passes by intestacy.

1 It appears that the two experts’ names were inadvertently switched in the trial court’s order.

The Executrix first filed a motion to exclude Baggett’s declaration and then later filed a document that
contained objections to Goldstein’s expert testimony; however, the trial court’s order states that the
trial court grants the Executrix’s motion to exclude Goldstein’s expert testimony and sustains the
Executrix’s objection to Baggett’s declaration. Nevertheless, the transposition of the two experts’
names appears to be inconsequential because the effect of the trial court’s order was that both
Baggett’s declaration and Goldstein’s expert testimony were excluded as summary-judgment evidence.

In re Est. of Wynn Page 6
The Executrix then filed a traditional motion for final summary

judgment on her counterclaim for a declaratory judgment that the Contestants

violated the terms of the Will’s in terrorem clause and forfeited any devise

under the Will. The Executrix further requested that the trial court award her

reasonable and necessary trial and appellate attorneys’ fees. The Contestants

filed a response to the Executrix’s motion, and the Executrix then filed an

additional reply brief in support of her motion for final summary judgment.

After a hearing, the trial court signed a final judgment, in which it

ordered that,

having failed to plead and timely to secure a finding by this Court
that the Contestants’ Will contest was brought in good faith and
with just cause, the Court’s enforcement of the in terrorem clause
in the Will cannot be avoided and, thus, all devises under the Will
to the Contestants, jointly and severally, are declared forfeited.

In the final judgment, the trial court further awarded the Executrix $7,500 in

attorneys’ fees for representation in the trial court, additional attorneys’ fees

if the Contestants filed an appeal upon which the Executrix prevailed, and all

costs of court.

The Contestants filed a notice of appeal from the trial court’s “Order

Granting [the Executrix’s] Amended No-Evidence Motion for Summary

Judgment and Granting [the Executrix’s] Objections to Contestants’

Additional Evidence.” The Contestants then timely filed a notice of appeal

In re Est. of Wynn Page 7
from the trial court’s final judgment. 2 Both notices of appeal were docketed in
1F

this one appellate cause number (10-23-00187-CV).

The Contestants thereafter filed an appellants’ brief raising six issues

regarding whether the trial court erred in its “Order Granting [the Executrix’s]

Amended No-Evidence Motion for Summary Judgment and Granting [the

Executrix’s] Objections to Contestants’ Additional Evidence” and its “Order

Granting [the Executrix]’s [Traditional] Motion for Partial Summary

Judgment.” Subsequently, the Contestants filed a motion for leave to

supplement their appellate briefing, which we granted. The Contestants then

filed a supplemental appellants’ brief raising three additional issues regarding

whether the trial court erred in its final judgment. For clarity, we will refer to

the Contestants’ three additional issues as “supplemental” issues.

II. The Contestants’ Claims

In their first four issues, the Contestants argue that the trial court erred

in its “Order Granting [the Executrix’s] Amended No-Evidence Motion for

Summary Judgment and Granting [the Executrix’s] Objections to Contestants’

Additional Evidence” by ruling to exclude certain of their summary-judgment

evidence. The Contestants then argue in their fifth issue that the trial court

erred in the same order by granting the Executrix’s no-evidence motion for

2 “When a trial court renders a final judgment, the court’s interlocutory orders merge into the

judgment and may be challenged by appealing that judgment.” Bonsmara Nat. Beef Co. v. Hart of Tex.
Cattle Feeders, LLC, 603 S.W.3d 385, 390 (Tex. 2020).

In re Est. of Wynn Page 8
summary judgment on their claim that the Will had been forged and/or altered.

In their sixth issue, the Contestants argue that the trial court erred in its

“Order Granting [the Executrix]’s [Traditional] Motion for Partial Summary

Judgment” by determining that the Executrix was entitled to judgment as a

matter of law on the Contestants’ declaratory-judgment action to construe the

Will and on the Contestants’ causes of action premised on their ownership of

the decedent’s property as his intestate heirs.

A. Exclusion of Contestants’ Own Declarations

We begin with the Contestants’ fourth issue, in which they argue that

the trial court erred in sustaining the Executrix’s objections to their own

declarations and in, consequently, excluding the declarations as summary-

judgment evidence regarding forgery of the Will.

We review a trial court’s ruling on the admissibility of evidence in a

summary-judgment proceeding for an abuse of discretion. Paciwest, Inc. v.

Warner Alan Props., LLC, 266 S.W.3d 559, 567 (Tex. App.—Fort Worth 2008,

pet. denied). A trial court abuses its discretion when it acts arbitrarily,

unreasonably, or without reference to guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

The summary-judgment evidence here included unsworn declarations

from the Contestants themselves. Each of the Contestants’ declarations

provided that the respective person had gone to the Limestone County

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Courthouse and had personally examined the Will. Each declaration then

provided:

5. Based on my personal examination of the Will, I observed
that page 3 to the Will is a different type of paper than pages
1, 2, 4 and 5 of the Will. The page feels different to the touch
and has a different appearance when examined than the
other pages of the Will.

6. I am personally familiar with my father’s handwriting based
on years of handwritten correspondence with him
throughout my life and my personally observing his
handwriting, including in and around 2003, when the
purported will was written, and then in his later years. I
have received handwritten letters, notes and cards from my
father on innumerable occasions throughout my life. I
observed his handwritten notes throughout my life. I
routinely visited my father throughout his life, seeing him at
least [four times a year for Carol and once if not twice a year
for William Jr.] at a minimum. During my visits, I often
observed his handwritten notes around his home.

7. Accordingly, based on the above, I am familiar with the
manner and style of my father’s handwriting, having often
seen him write his signature and having seen his signature
on documents I know to have been signed by him.

8. The initials at the bottom of page 3 of the Will are not my
father’s handwritten initials in his handwriting.

9. Based on the above, it is my personal observation that page
3 of the Will was added to pages 1, 2, 4 and 5 at a different
time and that my father never initialed page 3 of the Will.

The Executrix objected in the trial court that the Contestants’

declarations were wholly conclusory. Specifically, the Executrix argued that

each Contestant “baldly state[d]” that “[t]he initials at the bottom of page 3 of

In re Est. of Wynn Page 10
the Will are not my father’s handwritten initials in his handwriting” without

providing the factual basis upon which that opinion rested. The Executrix

complained that “[t]he Contestants [did] not explain what unique qualities of

their father’s initials were missing or different on the Will.”

In this appeal, the Executrix reasserts her contention that the

Contestants’ opinions in their declarations were conclusory and, therefore,

inadmissible as summary-judgment evidence. Specifically, the Executrix

argues that, to avoid being conclusory, “the Contestants had to explain why

the initials on the third page [of the Will] are different from what [the

Contestants] personally observed during their ‘years of handwritten

correspondence with [their father]’ and ‘his handwritten notes.’”

The Executrix contends that the El Paso Court of Appeals’ decision in

Edwards v. Federal National Mortgage Association, 545 S.W.3d 169 (Tex.

App.—El Paso 2017, pet. denied), is directly on point. In Edwards, the Federal

National Mortgage Association (Fannie Mae) sought to foreclose on a home

that James Edwards had inherited from his mother. Id. at 172–73. Fannie

Mae filed a traditional motion for summary judgment supported in part by

several business records, including a promissory note that Edwards’s mother

purportedly executed, a deed of trust that was purportedly executed in

conjunction with the promissory note, and additional paperwork showing that

Edwards was in default. Id. at 173. Edwards, who had asserted in his answer

In re Est. of Wynn Page 11
that his mother’s signature on the promissory note was a forgery, filed a

response to the summary-judgment motion, supported by his own declaration

that included the following two statements: (1) he was familiar with his

mother’s signature; and (2) the signature on the promissory note attached to

the summary judgment was not her signature. Id. at 172–74, 178. Edwards

provided no additional explanation for the statements. Id. at 178. The trial

court granted Fannie’s Mae’s motion for summary judgment. Id. at 174.

Edwards argued on appeal that the trial court erred in granting

summary judgment, in part, because, through his declaration, he had raised a

genuine issue of material fact that the promissory note was forged. Id. at 177.

Fannie Mae responded to Edwards’s argument by contending, in part, that

Edwards’s declaration was conclusory. Id. at 178. The El Paso Court of

Appeals agreed with Fannie Mae and concluded that the two statements made

by Edwards in his declaration were conclusory. Id.

First, the Edwards court explained its determination by stating that

Edwards had provided no factual basis for how he was familiar with his

mother’s signature. Id. The Edwards court, citing Texas Rule of Civil

Procedure 166a(f), observed that a proponent must establish how the witness

obtained the personal knowledge he claims to have. Id. at 179 (citing TEX. R.

CIV. P. 166a(f)).

In re Est. of Wynn Page 12
Next, the Edwards court explained that Edwards’s statement that the

signature on the promissory note was not his mother’s signature was

conclusory because it was a “bare claim” that the signature was forged. Id. at

179. The Edwards court asserted that cases in which lay testimony had been

determined to be sufficient had included “something more than a simple claim

the signature is forged.” Id. (citing Wasserberg v. 84 Lumber Co., L.P., No. 14-

10-00136-CV, 2011 WL 3447493, at *1, *3–5 (Tex. App.—Houston [14th Dist.]

Aug. 9, 2011, no pet.) (mem. op.) (holding that assertions in affidavit (1) that

signature affixed to credit application was not authentic and was not affiant’s

signature and (2) that affiant did not sign credit application or authorize

anybody to sign it on his behalf were statements of fact and not conclusory and

raised a genuine issue of material fact as to execution of credit application that

contained guaranty language that was basis of claim against affiant), and In

re Est. of Swanson, 130 S.W.3d 144, 148 (Tex. App.—El Paso 2003, no pet.)

(holding that decedent’s sister presented sufficient evidence casting doubt on

will’s validity to defeat no-evidence summary-judgment motion where she

unequivocally testified that she knew her sister’s signature and that signature

on will was not her sister’s and where there was some unrebutted testimony

that notary public who notarized and witnessed will’s execution had no record

entry recording notarization of will)). The Edwards court continued, stating

that, “[c]onversely, bare opinions that a signature is a forgery are insufficient.”

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Id. (citing In re Est. of Price, No. 04-05-00438-CV, 2006 WL 3725542, at *2

(Tex. App.—San Antonio Dec. 20, 2006, pet. denied) (mem. op.) (holding that,

without establishing familiarity with her aunt’s signature, niece’s assertion in

her deposition that the “initials and the signature [of her aunt] look different”

was conclusory and therefore not enough evidence to raise fact issue regarding

validity of signature), and Cotten v. Cotten, 169 S.W.3d 824, 828–29 (Tex.

App.—Dallas 2005, pet. denied) (holding that trial court did not abuse its

discretion in granting motion to strike party’s affidavit because statements

that his mother had forged his father’s signature on deed and that unidentified

“expert” had confirmed forgery were conclusory and therefore not proper

summary-judgment evidence)). The Edwards court then observed that

Edwards’s declaration did not explain what unique qualities of his mother’s

signature were missing or different on the promissory note. Id. The Edwards

court thus determined that the single statement that the signature on the

promissory note was not his mother’s, without something more, was

conclusory. Id.

The Executrix contends here that “[t]he Contestants’ handwriting

opinions are virtually indistinguishable from the one that the [Edwards court]

held was conclusory.” The Contestants, on the other hand, argue that, unlike

the declaration in Edwards, their own declarations were not conclusory

because the Contestants provided foundation in their declarations as to how

In re Est. of Wynn Page 14
they are familiar with the decedent’s handwriting and presented more than a

bare claim that the initials on the third page of the Will are forged. We agree

with the Contestants.

Texas Rule of Civil Procedure 166a(f) provides: “Supporting and

opposing affidavits shall be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.” TEX. R. CIV. P.

166a(f). Pursuant to Texas Rule of Evidence 701, lay witness opinion

testimony is admissible if it is “(a) rationally based on the witness’s perception;

and (b) helpful to clearly understanding the witness’s testimony or to

determining a fact in issue.” TEX. R. EVID. 701. Furthermore, Texas Rule of

Evidence 901(b)(2) specifically permits a lay witness to provide an “opinion

that handwriting is genuine, based on a familiarity with it that was not

acquired for the current litigation.” Id. R. 901(b)(2).

Here, to support their lay opinions that the initials at the bottom of the

third page of the Will were not in the decedent’s handwriting, the Contestants

provided in their declarations a detailed factual explanation of how they had

personally witnessed the decedent’s handwriting throughout their lives,

including observing his handwriting both around the time that the Will was

purportedly signed and during his later years. The Contestants stated in their

declarations that they not only saw the decedent’s signature on documents that

In re Est. of Wynn Page 15
were known to have been signed by him but also observed the decedent write

his signature on documents. The Contestants then explained in their

declarations that the foregoing was how they became “familiar with the

manner and style” of the decedent’s handwriting. And because they are

familiar with the manner and style of the decedent’s handwriting, the

Contestants observed that the initials at the bottom of the third page of the

Will are not the decedent’s handwritten initials in his handwriting.

A statement is only conclusory if it does not provide the underlying facts

to support the conclusion. Wolfe v. Devon Energy Prod. Co., LP, 382 S.W.3d

434, 452 (Tex. App.—Waco 2012, pet. denied). Here, even though the

Contestants did not provide in their declarations a technical explanation of

how the initials at the bottom of the third page of the Will differ from the

decedent’s handwriting, the Contestants did provide the underlying facts to

support their lay opinions that the initials at the bottom of the third page of

the Will are not the decedent’s handwritten initials in his handwriting. See

TEX. R. EVID. 901(b)(2). The Contestants’ declarations are therefore

distinguishable from the declaration in Edwards and are not conclusory. See

Wolfe, 382 S.W.3d at 452. We thus conclude that the trial court abused its

discretion in sustaining the Executrix’s objections to the Contestants’ own

declarations and in, consequently, excluding the declarations as summary-

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judgment evidence. See Paciwest, Inc., 266 S.W.3d at 567. The Contestants’

fourth issue is sustained.

B. Summary Judgment on Contestants’ Forgery/Alteration
Claims

We now turn to the Contestants’ fifth issue, in which they argue that the

trial court erred in granting the Executrix’s no-evidence motion for summary

judgment on their claim that the Will had been forged and/or altered.

A no-evidence summary judgment is essentially a pretrial directed

verdict, and we apply the same legal sufficiency standard on review. Mack

Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006); King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). Once a no-evidence summary-

judgment motion is filed, the nonmoving party must produce summary-

judgment evidence raising a genuine issue of material fact as to the elements

specified in the motion to defeat the summary judgment. Mack Trucks, Inc.,

206 S.W.3d at 582; see TEX. R. CIV. P. 166a(i). “A genuine issue of material fact

exists if more than a scintilla of evidence establishing the existence of the

challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

600 (Tex. 2004). More than a scintilla of evidence exists if the evidence would

enable reasonable and fair-minded jurors to differ in their conclusions.

Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). Evidence

that is “so weak as to do no more than create a mere surmise or suspicion” of a

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vital fact does not create a fact issue. See Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983). In determining whether the nonmoving party has

met its burden, we review the evidence in the light most favorable to the

nonmoving party, crediting evidence favorable to that party if reasonable

jurors could and disregarding contrary evidence unless reasonable jurors could

not. See Mack Trucks, Inc., 206 S.W.3d at 582; City of Keller v. Wilson, 168

S.W.3d 802, 807 (Tex. 2005).

In a proceeding to admit a will to probate, the will proponent bears the

initial burden of proof of showing that the will was properly executed and that

the testator had testamentary capacity at the time of execution. Jones v. Jones,

649 S.W.3d 577, 583 (Tex. App.—Houston [1st Dist.] 2022, no pet.); In re Est.

of Danford, 550 S.W.3d 275, 281 (Tex. App.—Houston [14th Dist.] 2018, no

pet.). The will proponent may make out a prima facie case on these issues by

introducing a self-proved will into evidence. Est. of Danford, 550 S.W.3d at

281; In re Est. of Coleman, 360 S.W.3d 606, 611 (Tex. App.—El Paso 2011, no

pet.). See generally TEX. EST. CODE ANN. §§ 251.101 (defining self-proved will);

251.204 (providing requirements for self-proving affidavit). After a will is

admitted to probate, as here, a will contestant has the burden of establishing

that the will is invalid. See Williams v. Hollingsworth, 568 S.W.2d 130, 132

(Tex. 1978); Est. of Coleman, 360 S.W.3d at 611. A will may be cancelled for

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forgery or other fraud. See TEX. EST. CODE ANN. § 256.204(a); see also id. §

251.051.

In the present case, the Executrix moved for partial summary judgment

on the ground that there was no evidence that the Will was forged or altered

in any way between its execution and its admission to probate. Therefore, to

preclude summary judgment, the Contestants were required to present

evidence raising a genuine issue of material fact regarding whether the Will

was forged or altered between its execution and its admission to probate. See

TEX. R. CIV. P. 166a(i); Est. of Coleman, 360 S.W.3d at 611; In re Est. of Flores,

76 S.W.3d 624, 629–30 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.).

The Contestants argue that they presented sufficient evidence to raise such a

genuine issue of material fact. We agree.

“Forge” means:

to alter, make, complete, execute, or authenticate any writing so
that it purports:

(i) to be the act of another who did not authorize that act;

(ii) to have been executed at a time or place or in a numbered
sequence other than was in fact the case; or

(iii) to be a copy of an original when no such original existed[.]

TEX. PENAL CODE ANN. § 32.21(a)(1)(A); see Est. of Flores, 76 S.W.3d at 630.

Proper lay testimony can raise a fact issue on forgery. See TEX. R. EVID. 701,

In re Est. of Wynn Page 19
901(b)(2); Est. of Price, 2006 WL 3725542, at *2; Est. of Swanson, 130 S.W.3d

at 148.

Here, as explained more fully above, the Contestants provided in their

own declarations that they are familiar with the manner and style of the

decedent’s handwriting and that they observed that the initials at the bottom

of the third page of the Will are not the decedent’s handwritten initials in his

handwriting. The Contestants also stated in their declarations that, based on

their personal examination of the Will, they observed that the third page of the

Will is a different type of paper than the other pages of the Will. We conclude

that the Contestants therefore presented evidence raising a genuine issue of

material fact regarding whether the Will was forged. See TEX. PENAL CODE

ANN. § 32.21(a)(1)(A); TEX. R. EVID. 701, 901(b)(2); Est. of Swanson, 130 S.W.3d

at 148. We accordingly conclude that the trial court erred in granting the

Executrix’s no-evidence motion for partial summary judgment. See TEX. R.

CIV. P. 166a(i); Est. of Coleman, 360 S.W.3d at 611; Est. of Flores, 76 S.W.3d at

629–30. The Contestants’ fifth issue is sustained.

C. Remaining Summary-Judgment Evidence Issues

Having sustained the Contestants’ fourth and fifth issues, we need not

reach the Contestants’ first, second, and third issues regarding the exclusion

of other summary-judgment evidence. See TEX. R. APP. P. 47.1.

In re Est. of Wynn Page 20
D. Summary Judgment on Contestants’ Declaratory-
Judgment Action & Other Claims

Having sustained the Contestants’ fourth and fifth issues, and having

concluded that the Contestants presented evidence raising a genuine issue of

material fact regarding whether the Will that was admitted to probate was

forged, we further conclude that the trial court’s granting of the Executrix’s

traditional motion for summary judgment on the Contestants’ declaratory-

judgment action to construe the Will and on the Contestants’ causes of action

premised on their ownership of the decedent’s property as his intestate heirs

was premature. See TEX. EST. CODE ANN. § 256.204(a) (signifying that a will

may be cancelled for forgery or other fraud). The Contestants’ sixth issue is

therefore sustained.

III. The Executrix’s Counterclaim

In their three supplemental issues, the Contestants argue that the trial

court erred in its final judgment. We address each supplemental issue in turn.

A. Summary-Judgment Grounds

In their first supplemental issue, the Contestants argue that the trial

court erred by awarding final judgment against them on grounds and for

reasons different than those sought by the Executrix in her traditional motion

for summary judgment on her counterclaim. However, because below we

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sustain the Contestants’ second and third supplemental issues, we need not

reach this issue. See TEX. R. APP. P. 47.1.

B. Summary Judgment on Executrix’s Counterclaim

In their second supplemental issue, the Contestants argue that the trial

court erred by granting the Executrix’s traditional motion for summary

judgment on her counterclaim for a declaratory judgment that the Contestants

violated the terms of the Will’s in terrorem clause and forfeited any devise

under the Will because they presented summary-judgment evidence of their

good faith and just cause for prosecuting and maintaining their will contest.

The standard of review in traditional summary judgment cases is well

settled. The issue on appeal is whether the movant met its summary-judgment

burden of establishing that no genuine issue of material fact exists and that it

is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When reviewing a

traditional summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. Sw. Elec. Power Co., 73 S.W.3d at 215.

An in terrorem clause in a will typically makes the gifts in the instrument

conditional on the beneficiary not challenging or disputing the validity of the

instrument. Di Portanova v. Monroe, 402 S.W.3d 711, 715 (Tex. App.—

Houston [1st Dist.] 2012, no pet.). In terrorem clauses are designed to dissuade

In re Est. of Wynn Page 22
beneficiaries from filing vexatious litigation, particularly as among family

members, that might thwart the intent of the grantor. Id.

Subsection 254.005(a) of the Estates Code provides:

A provision in a will that would cause a forfeiture of or void a
devise or provision in favor of a person for bringing any court
action, including contesting a will, is enforceable unless in a court
action determining whether the forfeiture clause should be
enforced, the person who brought the action contrary to the
forfeiture clause establishes by a preponderance of the evidence
that:

(1) just cause existed for bringing the action; and

(2) the action was brought and maintained in good faith.

TEX. EST. CODE ANN. § 254.005(a). In general, “the term ‘just cause’ contains

an essential element of reasonable factual grounds that may be fairly applied

to the legal action at issue.” In re Guardianship of A.B., 630 S.W.3d 489, 496

(Tex. App.—Eastland 2021, pet. denied); see In re Est. of Kam, 484 S.W.3d 642,

654–55 (Tex. App.—El Paso 2016, pet. denied) (“’With just cause’ means that

the actions ‘in this proceeding were based on reasonable grounds and there was

a fair and honest cause or reason for said actions.’” (quoting Ray v. McFarland,

97 S.W.3d 728, 730 (Tex. App.—Fort Worth 2003, no pet.))). “For an action to

be brought with just cause, factual grounds in support of the action must exist

and be presented, and those grounds must be reasonably applicable to the

proffered legal basis relied upon.” Guardianship of A.B., 630 S.W.3d at 496.

Here, the Will provided as follows:

In re Est. of Wynn Page 23
8. WILL CONTEST PROVISION
If any beneficiary or remainderman under this Will in any
manner, directly or indirectly, contests or attacks this Will
or any of its provisions, any share or interest in my estate or
in the estate of any trust established by this Will given to
that contesting beneficiary or remainderman under this Will
is revoked and shall be disposed of in the same manner
provided herein as if that contesting beneficiary or
remainderman had predeceased me without issue.

We assume without deciding that the Executrix established as a matter of law

that the foregoing provision, if enforceable, “would cause a forfeiture of or void

a devise or provision in favor of ” the Contestants for bringing their

forgery/alteration claims. See generally TEX. EST. CODE ANN. § 254.005(a).

Even so, however, we concluded above that the Contestants presented evidence

raising a genuine issue of material fact regarding whether the Will that was

admitted to probate was forged and that the trial court therefore erred in

granting the Executrix’s no-evidence motion for partial summary judgment.

Accordingly, a genuine issue of material fact exists regarding whether the

Contestants had “just cause” for bringing their forgery/alteration claims. See

Guardianship of A.B., 630 S.W.3d at 496; Est. of Kam, 484 S.W.3d at 654–55.

For these reasons, we conclude that the Executrix did not meet her

summary-judgment burden of establishing that no genuine issue of material

fact existed and that she was entitled to judgment as a matter of law on her

counterclaim for a declaratory judgment that the Contestants violated the

In re Est. of Wynn Page 24
terms of the Will’s in terrorem clause and forfeited any devise under the Will. 3 2F

See TEX. EST. CODE ANN. § 254.005(a). We accordingly conclude that the trial

court erred by granting the Executrix’s traditional motion for summary

judgment on her counterclaim for a declaratory judgment. See TEX. R. CIV. P.

166a(c); Sw. Elec. Power Co., 73 S.W.3d at 215. The Contestants’ second

supplemental issue is sustained.

C. Attorneys’ Fees

In their third supplemental issue, the Contestants argue that the trial

court erred in awarding the Executrix attorneys’ fees. The Executrix’s claim

for attorneys’ fees was made, in part, in conjunction with her counterclaim

under the Declaratory Judgments Act. See generally TEX. CIV. PRAC. & REM.

CODE ANN. § 37.009. We just sustained the Contestants’ second supplemental

issue and held that the trial court erred by granting the Executrix’s traditional

motion for summary judgment on her counterclaim for a declaratory judgment.

Accordingly, it follows that the trial court erred in its award of attorneys’ fees

to the Executrix. See, e.g., Healthcare Cable Sys., Inc. v. Good Shepherd Hosp.,

Inc., 180 S.W.3d 787, 793 (Tex. App.—Tyler 2005, no pet.). The Contestants’

third supplemental issue is sustained.

3 The Executrix did not attempt to argue in her summary-judgment motion that she had
established as a matter of law that the Contestants’ action had not been brought and maintained in
good faith. See TEX. EST. CODE ANN. § 254.005(a)(2).

In re Est. of Wynn Page 25
IV. Conclusion

In light of the foregoing, the judgment of the trial court is reversed, and

this proceeding is remanded to the trial court for further proceedings

consistent with this opinion.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: December 18, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Reversed and remanded
CV06

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