Lena Jo Barber v. Dorothea Cangelosi, as Independent of the Estate of Anna Lee Cangelosi

Opinion issued January 14, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00781-CV

LENA JO BARBER, Appellant

V.

DOROTHEA CANGELOSI, INDEPENDENT EXECUTRIX OF THE

ESTATE OF ANNA LEE CANGELOSI, Appellee

On Appeal from County Court at Law

Waller County, Texas

Trial Court Cause No. P0577

MEMORANDUM OPINION

Anna

Lee Cangelosi executed her final will in 2004 at age 82, naming her daughter, Dorothea

Cangelosi, as executrix and sole beneficiary of her estate. With respect to Anna Lee’s two remaining

children, the 2004 will declares: “For

reasons that seem fair to me I have specifically made no provision for

distribution to my son, John Charles Cangelosi, Jr., and my daughter, Lena Jo

Barber, both of whom I love very much.”

After Anna Lee’s death in 2005,

Dorothea filed an application to probate her mother’s 2004 will or,

alternatively, her mother’s 1999 will, which, like the will that superseded it,

also left nothing to John or Lena. Lena

brought a contest to the application, contending, among other things, that the 2004

will was invalid because (1) it lacked due formality; (2) Dorothea had

exerted undue influence over her mother; and (3) Anna Lee lacked testamentary

capacity on the date of its execution. A

few months before the 2008 trial setting, Lena amended her opposition to the

2004 and 1999 wills to apply for probate of her mother’s 1989 and 1983 wills,

both of which named her as a beneficiary.

The trial court granted summary

judgment in favor of the estate on Lena’s lack of due formality and undue

influence claims, as well as her claims for declaratory relief, resulting

trust, constructive trust, breach of fiduciary duty, conversion, and tortious

interference with inheritance rights. The

trial court also bifurcated the proceedings, leaving for later disposition Lena’s

applications concerning the 1989 and 1983 wills, and proceeded to jury trial on

the testamentary capacity challenge to the 2004 will. The jury found that Anna Lee had testamentary

capacity to execute the 2004 will. Based

on that finding, the trial court entered final judgment that Lena take nothing

on her claims and admitted the 2004 will to probate.

Lena

appeals, contending that the trial court erred in (1) granting summary judgment

for the estate on her lack of due formality, undue influence, and other claims,

(2) entering judgment on the jury finding that Anna Lee had testamentary

capacity to execute the 2004 will, (3) bifurcating the proceedings, and (4)

denying her proposed jury questions on good faith and just cause in support of

her attorney’s fees claim. We affirm

that part of the judgment rendered on the jury’s verdict admitting the 2004

will to probate. We reverse that part of

the judgment denying Lena’s request for attorney’s fees and remand for further

proceedings consistent with this opinion.

BACKGROUND

Anna

Lee suffered from various health problems over the years. After the death of her husband in 1987, she moved

into an assisted living center, where she resided until 2000. While maintaining her residence at the

center, she also spent time living with Dorothea, who helped Anna Lee with her

day-to-day needs.

Anna

Lee owned a large parcel of land in Fort Bend County that became the subject of

a condemnation proceeding initiated by Fort Bend Independent School

District. In March 1999, Anna Lee

received $798,000 from the school district for the property. Dorothea, who had a power of attorney from

Anna Lee granting her authority to make decisions regarding her assets,

deposited these funds in various bank accounts.

In

2000, Dorothea used the funds to make a down payment on a 100-acre ranch in

Waller County. She took title in her own

name and continued to draw on the funds to pay the mortgage and other

ranch-related expenses.

In

2002, Anna Lee left the assisted living center to move into the ranch with

Dorothea. By this time, Lena had been

estranged from her mother for a number of years. She did not visit, did not call, and, when

Anna Lee telephoned, Lena generally refused to take the call.

Anna

Lee executed her final will and testament on May 12, 2004. Before that date, she discussed the contents

of the will numerous times with her attorney.

When he asked Anna Lee if she wanted to include Lena in the will, she

said “Lena Jo never talks to me; she doesn’t come see me. I can’t talk to her on the phone. She has a telephone. She can call, but she won’t talk. She just—you know, as to Lena Jo, she just doesn’t

seem like she cares for me and it hurts.”

Anna

Lee’s attorney prepared the will and explained it to her paragraph by paragraph

before she executed it. He perceived

Anna Lee as knowing the nature and extent of her property and her family,

understanding that she was making a will and the effect of making a will, and

having sufficient memory to collect in her mind the elements involved in making

a will and their relation to each other.

Some of the medical records from Anna

Lee’s occasional hospitalizations in her later life state that she presented as

disoriented and as suffering from dementia.

Various friends and family members, however, found Anna Lee articulate

and intelligent, and stated that she displayed no signs of dementia in 2003 and

2004. Anna Lee’s treating physician

during the last two years of her life opined that Anna Lee did not suffer from

any sort of progressive dementia and he had not perceived any significant

decline of her mental abilities.

Proceedings in the trial court

Three

months after Anna Lee’s death, in September 2005, Dorothea applied to probate

her mother’s 2004 will, adding an alternative application to probate the 1999

will. Lena filed an opposition to the

probate of that will soon after, alleging that Dorothea had exerted an undue

influence over her mother. Lena later

added claims seeking a constructive trust and resulting trust concerning

Dorothea’s purchase of the ranch, as well as other inter vivos transfers Anna

Lee had made to Dorothea.

In

January 2008, only a few months before trial, Lena amended her opposition to

the probate application again, this time adding to her contest of the 2004 and

1999 wills an application to probate Anna Lee’s 1983 will, or, alternatively, her

1989 will.

After the trial court granted Dorothea’s

motion for summary judgment on all of Lena’s claims but testamentary capacity, it

heard Dorothea’s motion to bifurcate the proceedings, in which she requested

that the court try the remaining claim in opposition to the 2004 will before

presenting the applications for the earlier wills to the jury. The trial court granted the motion and

presented the lack of testamentary capacity claim pertaining to the 2004 will to

a jury. The jury found that Anna Lee had

testamentary capacity on the day she executed the 2004 will. The outcome mooted the remaining applications,

and the trial court entered judgment on the jury’s finding.

DISCUSSION

I. Summary judgment challenges

A. Standard

of review

Dorothea

moved for summary judgment on both traditional and no evidence grounds, and the

trial court’s order grants summary judgment without specifying any

grounds. We review a trial court’s

summary judgment de novo. Valence Operating Co. v. Dorsett , 164

S.W.3d 656, 661 (Tex. 2005); Provident

Life Accid. Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). Under the traditional standard for summary

judgment, the movant has the burden to show that no genuine issue of material

fact exists and that the trial court should grant a judgment as a matter of

law. Tex. R. Civ. P. 166 a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp. , 988 S.W.2d

746, 748 (Tex. 1999). When

reviewing a summary judgment motion,

we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett ,

164 S.W.3d at 661 ; Knott , 128 S.W.3d

at 215 ; Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997).

Traditional summary judgment is proper only if the

movant establishes that there is no genuine issue of material fact and that the

movant is entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c). The motion must state the specific grounds relied

upon for summary judgment. Id. A defendant moving for traditional summary

judgment must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an

affirmative defense. Sci. Spectrum,

Inc. , 941 S.W.2d at 911 .

After

adequate time for discovery, a party may move for a no-evidence summary

judgment on the ground that no evidence exists to support one or more essential

elements of a claim or defense on which the opposing party has the burden of

proof. Tex.

R. Civ. P . 166a(i). The trial

court must grant the motion unless the nonmovant produces summary judgment

evidence raising a genuine issue of material fact. Id.

More than a scintilla of evidence exists if the evidence “would allow

reasonable and fair-minded people to differ in their conclusions.” Forbes Inc. v. Granada Bioscis., Inc. ,

124 S.W.3d 167, 172 (Tex. 2003).

B. Lack

of due formality

Lena first contends that the trial

court erred in granting summary judgment on her claim that the 2004 will lacked

due formality. Section 59 of the Texas

Probate Code sets forth the requisites of a will. To be valid, a will must be (1) in writing,

(2) signed by the testator in person, and (3) attested by two or more credible

witnesses above the age of fourteen years who write their signatures in the testator’s

presence. Tex. Prob. Code Ann.

§ 59(a) (Vernon 2003). A will may

be self-proved, making the witnesses’ appearance in court unnecessary, by

including affidavits from the testator and the attesting witnesses containing

prescribed language declaring the testator’s appearance and execution of the

will. See id. Lena concedes that

the 2004 will contains a self-proving affidavit, which, once admitted into

evidence, makes a prima facie showing that the will was properly executed. See

Bracewell v. Bracewell , 20 S.W.3d 14, 26 (Tex. App.—Houston [14th Dist.]

2000, no pet.). Dorothea’s motion for

summary judgment also establishes that the 2004 will satisfies the requirements

of section 59.

Summary judgment is improper,

according to Lena, because Dorothea’s failure to establish that the witnesses

independently determined that the testator was of sound mind precludes summary

judgment. Texas law, however, does not

require the witnesses to make such a determination, and Lena does not identify

any evidence raising a fact issue on the legally recognized requirements. We therefore hold that the trial court

properly granted summary judgment on the lack of due formality claim.

C. Undue

influence

Lena

next contends that the trial court erred in granting summary judgment on her

claims that Anna Lee executed the 2004 and 1994 wills under the undue influence

of Dorothea. To justify setting aside a

will because of undue influence, the party contesting its execution bears the

burden to prove the (1) existence and exertion of an influence (2) that

subverted or overpowered the testator’s mind at the time he executed the instrument

(3) so that the testator executed an instrument he would not otherwise have

executed but for that influence. In re Estate of Henry , 250 S.W.3d 518,

523 (Tex. App.—Dallas 2008, no pet.); Long

v. Long , 196 S.W.3d 460, 467 (Tex. App.—Dallas 2006, no pet.).

Lena

points to evidence of factors that, in some cases, have shown that an

individual had the opportunity to exert undue influence over the testator, but does

not identify any evidence raising a fact issue about whether Dorothea actually

exerted any influence over Anna Lee in connection with her execution of the

1999 or 2004 will. “The exertion of

undue influence cannot be inferred by opportunity alone. There must be some evidence to show that the

influence was not only present, but in fact exerted with respect to the making

of the testament itself.” Cotten v. Cotten , 169 S.W.3d 824, 827

(Tex. App.—Dallas 2005, pet. denied).

Because the evidence fails to raise a fact issue concerning the exertion

of undue influence in Anna Lee’s execution of either the 1999 or 2004 will, the

trial court properly granted summary judgment on these claims.

II. Legal

and factual sufficiency of evidence supporting jury finding of testamentary

capacity

A. Standard

of review

We

review the sufficiency of the evidence supporting challenged findings of fact

by applying the same standards that we use in reviewing the legal or factual

sufficiency of the evidence supporting jury findings. Catalina

v. Blasdel , 881 S.W.2d 295, 297 (Tex. 1994). We review de novo a trial court’s conclusions

of law and uphold them on appeal if the judgment can be sustained on any legal

theory supported by the evidence. BMC Software Belg. v. Marchand , 83

S.W.3d 789, 794 (Tex. 2002); In re Moers ,

104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

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 fact-finder. 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).

B. Testamentary capacity

Testamentary capacity means

possession of sufficient mental ability at the time of execution of the will

(1) to understand the business in which the testator is engaged, the effect of

making the will, and the general nature and extent of his property, (2) to know

the testator’s next of kin and the natural objects of his bounty, and (3) to

have sufficient memory to assimilate the elements of the business to be

transacted, to hold those elements long enough to perceive their obvious

relation to each other, and to form a reasonable judgment as to them. Prather

v. McClelland , 13 S.W. 543, 546 (Tex. 1890); Guthrie v. Suiter , 934 S.W.2d 820, 829 (Tex. App.—Houston [1st

Dist.] 1996, no writ). The jury heard

evidence about Anna Lee’s health problems and conflicting testimony on her

mental capacity during the last few decades of her life. The jury was entitled to assess the

witnesses’ credibility and the weight to be given to their testimony. The evidence presented at trial “would enable

reasonable and fair-minded people to reach the verdict under review.” City of

Keller , 168 S.W.3d at 827 . We thus

hold that the evidence is legally sufficient to support the jury’s finding of

testamentary capacity.

The bulk of the evidence, including

testimony from Anna Lee’s attorney, treating physician, relatives, and friends,

supports the jury’s finding that Anna Lee had testamentary capacity on the date

she executed the 2004 will. Lena does

not point to any specific evidence undermining the jury’s finding. Instead, she objects to the testimony

supporting the finding on various evidentiary grounds. Those objections, however, were not made in

the trial court and thus were not preserved for review. See Tex. R. App. P . 33.1. After considering and weighing all of the

evidence supporting and contradicting the jury’s finding, we hold that the

evidence is also factually sufficient to support the jury’s finding of

testamentary capacity.

III. Bifurcation of proceedings

Lena

next challenges the trial court’s decision to bifurcate the proceedings,

allowing the issue of Anna Lee’s testamentary capacity in executing the 1999

and 2004 wills to be tried first and leaving the claims concerning the 1983 and

1989 wills for later, if their adjudication proved necessary. Texas Rule of Civil Procedure 174(b) confers

broad discretion on trial courts in decisions to sever or bifurcate proceedings.

Ramsay

v. Tex. Trading Co. , 254 S.W.3d 620, 623 (Tex. App.—Texarkana 2008, pet. denied);

see Tex.

R. Civ. P . 174(b). In reviewing the

trial court’s bifurcation decision, therefore, we do not disturb it even if we

would have decided the issue differently unless it is shown to be arbitrary and

unreasonable. See Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

Lena

contends that the trial court abused its discretion in bifurcating the trial

because section 83(a) of the Probate Code requires the trial court to hear

multiple applications together. See Tex.

Prob. Code Ann. § 83(a) (Vernon 2003). Section 83(a) sets forth the procedure

pertaining to a second application for probate, stating that if a second

application is filed before the first application is heard, the trial court

“shall hear both applications together and determine what instrument, if any, should

be admitted to probate .” Id.

We do not read this provision as precluding the use of bifurcation

where, as here, resolution of a discrete issue in the first part of the

proceeding may obviate the need for extensive evidence and possible confusion

concerning multiple applications. See Ramsay , 254 S.W.3d at 624 (trial

court’s bifurcation of proceeding to hear whether contract’s forum selection clause

bound investor was reasonable procedure suggested by logical structure of case,

allowing trial court to avoid full-blown trial on issues not subject to trial in

Texas if clause was enforceable). The

trial court’s bifurcation kept the competing applications in the same

proceeding and, at the same time, avoided presentation of potentially confusing

or unnecessary issues.

Lena

complains that the bifurcation prevented her from presenting evidence of

intertwined issues among the wills, including evidence of Anna Lee’s love and

affection toward all of her children. Love

and affection for possible heirs, however, is not a consideration in

determining testamentary capacity, the only issue before the jury in connection

with the 2004 will. [1] The trial court did not abuse its discretion

by bifurcating the proceeding.

IV. Refusal to submit attorney’s fees question

Lena complains of the trial court’s refusal

to submit the following question to the jury:

Do you find

. . . that LENA JO BARBER defended the [ 2004] will, . . .the

[1999] will . . ., or prosecuted the [1983] will . . .or the

[1989] will . . ., admitted to probate, whether successful or

not, in good faith and with just cause[?]

We review a trial court’s decision to

submit or refuse a particular question under the abuse of discretion standard. [2] Tex.

Dep’t of Hum. Servs . v. E.B. , 802

S.W.2d 647, 649 (Tex. 1990); ASEP USA,

Inc. v. Cole , 199 S.W.3d 369, 376 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

A. Waiver

Before

considering this charge issue on the merits, we first address Dorothea’s

contention that Lena waived her attorney’s fees claim. Texas follows a “fair notice” standard for

pleading, which looks to whether the opposing party can ascertain from the

pleading the nature and basic issues of the controversy and the testimony that

will be relevant. Horizon/CMS Healthcare

Corp. v. Auld , 34 S.W.3d 887, 896 (Tex. 2000).

Texas Rule of Civil Procedure 47 provides

that a pleading “shall contain . . . a short statement of the

cause of action sufficient to give fair notice of the claim involved . . . .”

Tex.

R. Civ. P . 47. “The purpose of

this rule is to give the opposing party information sufficient to enable him to

prepare a defense.” Roark v. Allen , 633 S.W.2d 804, 810 (Tex. 1982). The test of fair notice is whether an opposing

attorney of reasonable competence, on review of the pleadings, can ascertain

the nature and the basic issues of the controversy and the testimony probably

relevant. Bowen v. Robinson , 227 S.W.3d 86, 91 (Tex. App.—Houston [1st Dist.]

2006, pet. denied). If, as here, the opposing party does

not specially except to the challenged pleading in the trial court, we

“construe the pleadings liberally in favor of the pleader.” Horizon/CMS

Healthcare Corp. , 34 S.W.3d at 897 ; see

Tex. R. Civ. P . 1 .

The relevant portion of Lena’s live

pleading reads:

VII. ATTORNEY’S

FEES

27. Contestant/Applicant is entitled to collect

her reasonable and necessary attorneys’ fees and costs from Applicant/Defendant

or from Decedent’s estate, in that the filing and prosecuting of this action by

Contestant/Petitioner is of benefit to the estate. Further, pursuant to Texas Civil Practice and

Remedies Code § 37.009, Contestant/Applicant is further entitled to her

costs and reasonable and necessary attorney’s fees as are equitable and just.

Lena’s proposed jury question tracks

the language in section 243 of the Probate Code providing for payment out of

the estate of attorney’s fees to a designated person who “defends [a 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.” Tex.

Prob. Code Ann . § 243 (Vernon 2003). According to Dorothea, Lena waived any claim

to attorney’s fees under this section by (1) pleading for attorney’s fees

under section 37.009 of the Civil Practice and Remedies Code, which limits her ability

to recover fees to that provision alone, and (2) failing to specifically plead

the good faith and just cause standard required by the statute or to expressly invoke

section 243 as the basis for her attorney’s fees request.

The

plain language of Lena’s pleadings, which states that section 37.009 of the

Civil Practice and Remedies Code is not the sole but, rather, a “further”

ground for her attorney’s fees claim, demonstrates that Dorothea’s first

contention lacks merit. Dorothea relies

on Fletcher v. Harris , No.

14-05-00998-CV, 2007 WL 1152651 (Tex. App.—Houston [14th Dist.] Apr. 19, 2007,

no pet.) (not designated for publication), and Kirby v. Brown , 383 S.W.2d 184 (Tex. Civ. App.—El Paso 1964, writ

dism’d), to support her second contention that Lena was required either to

specifically plead her entitlement based on “good faith and just cause” or to

invoke section 243 by name, but we do not construe either Rule 47 or those cases

as imposing such a stringent standard for pleading. Neither Fletcher

nor Kirby addressed the issue of

section 243 fees as purely a sufficiency-of-pleading issue; rather, each court

pointed out that the party seeking fees was not entitled to them under section

243 because he had neither pleaded nor proved good faith. See

Fletcher , 2007 WL 1152651 , at *4; Kirby , 383 S.W.2d at 192 . These cases do not address the degree of

specificity required to put an opposing party on fair notice of the fee claim

under section 243.

To determine whether Lena’s pleadings

meet the fair notice standard, we ultimately must examine whether her claim for

fees for pursuing an action “of benefit to the estate”—a term not found in

section 243—sufficiently invokes the provision to put an opposing attorney of

reasonable competence on notice of that theory of fee recovery. Ample Texas authority indicates that it

does. Before adoption of the Probate

Code, Texas did not have a statute “expressly providing for the allowance of attorney’s

fees and other expenses incurred by an executor in probating or defending the

will.” Salmon v. Salmon , 295 S.W.2d 29, 31 (Tex. 1965). In Salmon ,

the Texas Supreme Court explained that Texas common law provided for fee

recovery in those circumstances, and that section 243, enacted in 1955, is “simply

a legislative declaration of the law as previously announced by [Texas]

courts.” Id. ; see Tex. Prob. Code Ann . § 243.

The Supreme Court went on to describe

the circumstances under which an executor could recover fees:

Under the

provisions of Section 243 and the decisions dealing with the same problem, a

person named as executor in a will is deemed to be acting for the benefit of the estate when he, in good faith and with

probable cause, employs attorneys to defend the will or prosecute an action to

probate same.

Salmon , 295

S.W.2d at 31 (emphasis added). The term

“for the benefit of the estate” appears in tandem with section 243 requests for

attorney’s fees in other cases as well. See, e.g. , Miller v. Anderson , 651 S.W.2d 726 , 727–28 (Tex. 1983) (holding

that executor was entitled to section 243 fees without independent findings of

good faith and just cause because benefit to estate was established when will

was admitted to probate; findings necessary only when will proponent is

unsuccessful); Weatherly v. Martin , 754

S.W.2d 790 , 794–95 (Tex. App.—Amarillo 1988, writ denied) (observing that threshold

consideration for award of attorney’s fees under section 243 is determined by

reasonable value of services rendered and necessarily incurred for benefit of

estate). Construing Lena’s pleadings

liberally, we hold that her request for attorney’s fees “for filing and

prosecuting” an action that is “of benefit to the estate” suffices to put an

opposing attorney of reasonable competence on notice that she sought attorney’s

fees under section 243 of the Probate Code.

B. Denial

of jury question

We turn to consider whether the trial

court erred in denying Lena’s jury question on good faith and just cause to

support her section 243 request for attorney’s fees. Section 243 identifies two groups of persons

who may recoup from an estate attorney’s fees and costs incurred in the defense

or prosecution of a will. The first

group consists of “any person designated as executor in a will or an alleged

will, or as administrator with the will or alleged will annexed.” Tex.

Prob. Code Ann . § 243. Section

243 provides that, on the required showing, persons in this group “shall be

allowed out of the estate [their] necessary expenses and disbursements,

including reasonable attorney’s fees.” Id.

The

second group consists of “any person designated as a devisee, legatee, or

beneficiary in a will or an alleged will, or as administrator with the will or

alleged will annexed.” Id.

Persons in this group, section 243 provides, “may be allowed out of the

estate” their reasonable attorney’s fees on a showing of good faith and just

cause. Tex.

Prob. Code Ann . § 243. In

contrast to the use of “shall” for the first group, the use of “may” for this

second group signals that the trial court retains the discretion to deny an

attorney’s fees request from a person in that group notwithstanding a showing

of good faith and just cause. See In re Estate of Washington , 289

S.W.3d 362 , 367 –68

(Tex. App.—Texarkana 2009, pet. denied) (observing that devisee, legatee, or

beneficiary may have interest in prosecuting or defending will, but, unlike

executor, does not have legal duty to take action).

Whether

the trial court erred in denying Lena’s proposed jury question, therefore,

depends on whether Lena qualifies for fees as a member of the first group or

the second group described in section 243.

Lena’s live pleading explains that she brought the counter-application

to probate the 1983 will or, alternatively, the 1989 will as “a daughter of the

Deceased” and a person with “a pecuniary interest that will be affected by the

probate or defeat of the will,” and, therefore, “as an ‘interested person’ as

defined under Section 10 of the Texas Probate Code.” [3] Both the 1983 and 1989 wills name Lena as a beneficiary,

and the 1989 will also designates her as co-executor.

Because Lena’s ultimate strategy

seeks admission of the 1989 will, for which she is named a co-executor, she was

entitled to have her good faith and just cause question submitted to the jury. See

Zapalac v. Cain , 39 S.W.3d 414, 419 (Tex. App.—Houston [1st Dist.] 2001,

pet. denied) (affirming award of attorney’s fees under section 243 based on showing

that litigation efforts involved in contest of 1996 will were part of ultimate

trial strategy of admitting 1993 will to probate instead of 1996 will); see also Russell v. Moeling , 526 S.W.2d

533 , 535–36 (Tex. 1975) (explaining that claim for attorney’s fees under

section 243 must be brought in same proceeding with will application and cannot

be asserted in subsequent suit). We hold

that the trial court erred in refusing to submit Lena’s question on good faith

and just cause to support her claim for attorney’s fees.

V. Summary judgment on remaining claims against estate

Because legally and factually

sufficient evidence supports the jury finding that Anna Lee had testamentary

capacity to execute the 2004 will, Lena, who is neither an executor nor a

beneficiary of the 2004 will, lacks standing to bring claims on behalf of the

estate. See Tex. Prob. Code Ann.

§ 3(r) (Vernon Supp. 2009) (defining

“interested persons” or “persons interested” as “heirs, devisees,

spouses, creditors, or any others having a property right in, or claim against,

the estate being administered”). Her

lack of standing independently requires dismissal of her claims for breach of

fiduciary duty, constructive trust, and resulting trust. We therefore need not review her challenges

to the trial court’s summary judgment on those claims. See

Progressive County Mut. Ins. Co. v. Boyd , 177 S.W.3d 919, 921 (Tex. 2005) (“[A]

trial court’s erroneous decision to grant summary judgment can be rendered

harmless by subsequent events in the trial court.”).

CONCLUSION

The

trial court properly granted summary judgment on the lack of due formality and

undue influence claims. Because legally

and factually sufficient evidence supports the jury’s verdict, the trial court also

properly entered judgment on that verdict.

Further, the trial court did not abuse its discretion in bifurcating the

proceeding. The trial court erred,

however, in refusing to submit to the jury Lena’s proposed question on good

faith and just cause. We therefore reverse

the judgment to the extent it denies Lena’s request for attorney’s fees and

remand the case for trial on the issues of good faith and just cause for

advancing the 1983 and 1989 wills. We affirm the remainder of the trial court’s

judgment.

Jane

Bland

Justice

Panel consists of Chief Justice

Radack and Justices Bland and Massengale.

[1] Also, in her

2004 will, Anna Lee recited that she loved her children very much.

[2] Dorothea

contends that Lena waived this issue by failing to obtain a ruling. The test for preservation is whether the

party made the trial court aware of the complaint, timely and plainly, and

obtained a ruling. State Dep’t of Hwys. & Public Transp. v. Payne , 838 S.W.2d 235,

241 (Tex. 1992); see Zapalac v. Cain , 39 S.W.3d 414, 417

(Tex. App.—Houston [1st Dist.] 2001, no pet.).

The clerk’s record contains the proposed submission and the reporter’s

record documents the court’s ruling on it.

Thus, the issue is preserved for our review.

[3] “Under Texas

law, a party who seeks only to

contest a will may not obtain statutory reimbursement for attorney's fees under

Section 243.” Zapalac , 39 S.W.3d at 419 (emphasis in original).