Summary
holding that testator's recital in will that will "shall override any prior allocations described in trust documents" did not constitute revocation of trust because it was intended to take effect upon testator's death rather than be immediately operative
Summary of this case from In re Estate of KuyamjianOpinion
No. 11-14-00086-CV
03-31-2016
JOHN BARNES GORDON, INDEPENDENT EXECUTOR OF THE ESTATE OF PATRICK MALCOLM GORDON, DECEASED, Appellant v. BEVERLY DIANE GORDON, Appellee
On Appeal from the County Court at Law Bastrop County, Texas
Trial Court Cause No. 10256
MEMORANDUM OPINION
John Barnes Gordon, independent executor of the Estate of Patrick Malcolm Gordon, deceased, appeals from a summary judgment entered by the Bastrop County Court at Law, proceeding in probate. In that summary judgment, the trial court ruled that a clause in a joint will that Patrick had executed was a testamentary clause and that, by it, Patrick did not revoke a trust previously established by Patrick. Appellant, in a single issue, asserts that the trial court erred because, as a matter of law, the "definitive manifestation" of the joint will was to revoke Patrick's prior trust. We affirm.
John is Patrick's brother.
This case was transferred to this court from the Third Court of Appeals, and the precedent of that court binds us unless it would not bind that court. See TEX. R. APP. P. 41.3.
I. Background Facts
In 2009, Patrick and his wife, Beverly Diane Gordon, jointly executed a "Revocable Trust Agreement" (Trust). They began to fund the Trust with both personal and real property. Either of them could revoke the Trust "at any time during [Patrick] or [Beverly's] lifetime," but only in accordance with the method provided in the Trust. Under that method, either or both of them must sign, acknowledge, and deliver a signed revocation to the trustee. In the Trust, the parties provided that, after either Patrick or Beverly died, the Trust became irrevocable as to the deceased settlor. John was to serve as the successor Trustee after both Patrick and Beverly died.
The Trust actually had two parts: Trust A for Patrick and Trust B for Beverly.
In 2009, and shortly after they executed the Trust, Patrick and Beverly also executed individual "pour-over" wills. At a subsequent time, John asked Patrick and Beverly to let him provide financial planning and estate planning in order to avoid an "ESTATE WAR." John prepared a joint will in which Patrick and Beverly named John as the independent executor of the joint will and designated John's two children as two of the primary beneficiaries. In 2011, Patrick and Beverly executed the joint will that John had prepared.
The joint will contained provisions that purported to override all prior allocations made with respect to checking accounts, brokerage accounts, and other assets that may be transferable on death and not part of an estate. A specific clause in the joint will, under the heading " PROPERTY BEING DISPOSED OF ," read in part as follows:
It is our intention to dispose of all property (real, personal and mixed) which we have the right to dispose of by Will per the below categories in the manner described below based on who dies first or if we both die within 30 days of each other. This Will shall override any prior allocations described in trust documents or financial documents such as annuities and certificates of deposit.But neither Patrick nor Beverly took any steps to transfer property out of the Trust and into their own names. Patrick, who had suffered two strokes, died approximately one year after he executed the joint will that John had prepared.
John filed to probate the joint will that he had prepared. Subsequently, a dispute arose between Beverly and John, particularly over the clause in the joint will that read, "This Will shall override any prior allocations described in trust documents . . . ." John claimed that certain property was to be included in the probate estate; Beverly argued that the property was not part of the estate but, rather, was property that was subject to the Trust that she and Patrick had established.
John ultimately sought a declaratory judgment that the property belonged to the estate, not the Trust. Beverly filed a motion for summary judgment in which she argued that Patrick's part of the Trust became irrevocable upon his death. John argued in response that the joint will signed by Beverly and Patrick revoked the Trust. The only evidence that John attached to his response to Beverly's motion for summary judgment consisted of excerpts from Beverly's responses to certain interrogatories; by those interrogatories, John had requested information about safe deposit boxes, separate and community assets and liabilities, and expert consultations. He also sought the production of certain documents and inquired as to who answered each interrogatory.
The trial court heard Beverly's motion for summary judgment and granted it. The trial court held that the clause at issue was testamentary and that it had no effect until Patrick's death. The trial court also concluded that Patrick and Beverly did not, by the terms of the joint will, revoke the Trust. Therefore, the assets of the Trust were not a part of Patrick's estate.
II. Standard of Review
We review de novo a summary judgment order. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When we review a summary judgment, we take as true all evidence favorable to the nonmovant. Id. A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The nonmovant is not required to file a response to defeat the movant's summary judgment motion; however, once the movant establishes a right to judgment as a matter of law, the nonmovant must come forward with evidence or law that precludes summary judgment. Clear Creek, 589 S.W.2d at 678-79.
III. Analysis
Beverly asserts that this court lacks jurisdiction because the appeal is not from a final judgment. John asserts that the summary judgment order is final because it "disposes of the issue of the continued validity of the [Trust]," which is a "separate and distinct issue." We will address the jurisdictional issue first and, because we hold that we have jurisdiction, will then address John's sole issue on appeal.
A. Appellate Jurisdiction
Generally, courts of appeals have jurisdiction only over appeals from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes of appeal if it disposes of all pending parties and claims. Id. This appeal stems from a probate proceeding in the County Court at Law of Bastrop County. A final order issued by a probate court is appealable to a court of appeals. TEX. EST. CODE ANN. § 32.001(c) (West 2014).
In addition, probate proceedings are an exception to the "one final judgment" rule. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). In probate cases, "multiple judgments final for purposes of appeal can be rendered on certain discrete issues." Id. (quoting Lehmann, 39 S.W.3d at 192). In a probate proceeding, an order is final and appealable before the entire proceeding is concluded if the order disposes of all parties or issues in a particular phase of the proceedings. Id. at 579; Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995); In re Guardianship of Benavides, 403 S.W.3d 370, 374 (Tex. App.—San Antonio 2013, pet. denied). However, if the order does not end a phase of the proceedings, but only "sets the stage" for the resolution of all proceedings, the order is interlocutory. De Ayala, 193 S.W.3d at 579. In its order, the trial court held that the clause in the joint will was testamentary and concluded that, by it, Patrick and Beverly did not revoke the Trust. The trial court's order completely disposed of the issue regarding the effect of the joint will on the status of the Trust. See De Ayala, 193 S.W.3d at 578 (citing Lehmann, 39 S.W.3d at 192). We hold that we have jurisdiction. We now address the issue of whether the clause in Patrick's joint will was testamentary in nature or whether that clause revoked Patrick's Trust.
B. Joint Will's Effect on Patrick's Trust
John asserts that the "definitive manifestation" of the joint will was to revoke the Trust. Beverly argues that any attempted revocation of the Trust was ineffective because the joint will did not take effect until after the death of Patrick. We review the trial court's summary judgment decision on the ambiguity and construction of a will de novo. Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 241 (Tex. App.—Austin 2007, pet denied); see also In re Estate of Slaughter, 305 S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.).
When we construe a will, we focus on the testator's intent. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). We ascertain the testator's intent when we look at the language of the entire will as it is contained in the four corners of the will. Id.; Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex. App.—Austin 1992, no writ); see also Shriner's Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). The court focuses not on what the testator intended to write, but on the meaning of the words actually used. San Antonio Area Found., 35 S.W.3d at 639.
We must presume the testator placed nothing superfluous or meaningless in his will and intended every word to have a meaning and to play a part in the disposition of the property. Johnson, 840 S.W.2d at 672 (citing Marlin v. Kelly, 678 S.W.2d 582, 587 (Tex. App.—Houston [14th Dist.] 1984), aff'd sub nom. Kelley v. Marlin, 714 S.W.2d 303 (Tex. 1986)). In this light, courts must not redraft wills to vary or add provisions "under the guise of construction of the language of the will" in order to reach a presumed intent. Shriner's Hosp. for Crippled Children, 610 S.W.2d at 151.
Neither Beverly nor John argues that the joint will was ambiguous; instead, they argue about the legal effect of the clause in the joint will. If the will is unambiguous, we look to its terms to ascertain intent. San Antonio Area Found., 35 S.W.3d at 639. A mere difference in interpretation is not tantamount to an ambiguity. Providence Land Servs., LLC v. Jones, 353 S.W.3d 538, 541 (Tex. App.—Eastland 2011, no pet.).
When we attempt to ascertain the testator's intent, we view the will in its entirety. Disabled Am. Veterans v. Mullin, 773 S.W.2d 408, 410 (Tex. App.—San Antonio 1989, no writ). "If this intent can be ascertained from the language of the will, then any particular paragraph, clause or sentence, which, if considered alone, might indicate a contrary intention, must yield to the intention manifested by the whole instrument." Id. (citing Bergin v. Bergin, 315 S.W.2d 943, 946-47 (Tex. 1958)). And when the dominant purpose of the testator is first stated, the remaining parts of the will should be construed in harmony with that statement, if possible. Id. A clearly expressed intention in one part will not yield to a doubtful construction of another part. Heller v. Heller, 269 S.W. 771, 774 (Tex. 1925). We should not construe a will to contradict itself when any alleged contradictions can be resolved through deduction and consistent interpretation of the will as a whole and from its context. Richardson v. Roberts, No. 03-03-00077-CV, 2004 WL 1171674, at *2 (Tex. App.—Austin May 27, 2004, no pet.).
The clause at issue in the joint will is underneath a heading that reads, " PROPERTY BEING DISPOSED OF ." The contents of the paragraphs beneath this heading deal with property that will be distributed after Patrick's death. The sentence immediately preceding the clause at issue begins, "It is our intention to dispose of . . . ." Such phrasing, when placed in a will, necessarily indicates a future disposition of property, one conditioned on the death of the testator. See In re Estate of Jones, 197 S.W.3d 894, 903 (Tex. App.—Beaumont 2006, pet. denied) (stating the principle that "[a] will is generally defined as an instrument by which a person makes a disposition of his property, to take effect after his death, and which by its own nature is ambulatory and revocable during his lifetime" (quoting In re Estate of Brown, 507 S.W.2d 801, 803 (Tex. Civ. App.—Dallas 1974, writ ref'd n.r.e.))).
Patrick and Beverly declared in the first paragraph of the first page of the joint will that they "hereby expressly revoke all our former Wills and Codicils previously made and declare this to be our Last Will and Testament." The language of this declaration, in contrast to the language used to describe a future disposition of property, indicates a present intent to make a joint will and revoke all other wills as of the date of execution. See Appling v. Jay, 390 S.W.2d 799, 802 (Tex. Civ. App.—Texarkana 1965, writ ref'd n.r.e.) (stating that a will "may be of a dual character; testamentary in part, but operative in praesenti in other parts"). In Appling, the words used in the following phrase indicated that the testator meant for the clause to have immediate effect: "I, [Testator] . . . do make and publish this, my last will and testament, hereby revoking all wills and codicils by me heretofore made." See id. at 801-02.
In this case, after stating the present intention to revoke prior wills, the joint will set out the purpose of the will; the identity of family members; the appointment and powers of executors; and the payment of debts, taxes, and administration expenses. The joint will also contained a contingent trust section in which Patrick and Beverly provided that, upon the termination of any trust, the assets to be distributed to an incapacitated person or a person under the age of twenty-one were to be held in trust for them. But if Patrick had intended to immediately revoke his Trust, then this contingency provision, as it refers to trusts, would be unnecessary.
John's alleged interpretation of the joint will would create inconsistencies that do not reflect a construction that is in harmony with the context of the entire will. Disabled Am. Veterans, 773 S.W.2d at 410. John relies on Sanderson v. Aubrey in support of his argument that the joint will revoked the trust. See Sanderson v. Aubrey, 472 S.W.2d 286 (Tex. Civ. App.—Fort Worth 1971, writ ref'd n.r.e.). In Sanderson, the testator provided in her will that "[t]his instrument is specifically included in the revocation clause . . . and same is now formally revoked because the beneficiary of said instrument . . . has been a bitter disappointment to me." Id. at 287. But Patrick did not use such language in the joint will and did not place that type of language at the beginning of the joint will where he provided that the revocation of his prior will was immediate.
In addition, a settlor may revoke a trust as provided for in the trust or, if no provision is made therefor, through any manner that manifests the settlor's intent to revoke the trust. See Appling, 390 S.W.2d at 801; Sanderson, 472 S.W.2d at 286-87. In the Trust, Patrick specified how it must be revoked. Therefore, Sanderson, a case in which the settlor did not provide for a specific method for revocation of the trust, is inapplicable. As we have previously explained, Patrick did not manifest an intent in the joint will to revoke his Trust. See Jameson v. Bain, 693 S.W.2d 676, 681 (Tex. App.—San Antonio 1985, no writ) (intent not manifested in will); see also Runyan v. Mullins, 864 S. W.2d 785, 790 (Tex. App.—Fort Worth 1993, writ denied) (letter did not manifest intent to revoke). When we read the entire will, especially the sections on property to be disposed of and future bequests that would occur after Patrick's death, we conclude that the clause at issue is one that is testamentary in nature. See Richardson, 2004 WL 1171674, at *2; see also Disabled Am. Veterans, 773 S.W.2d at 410. We hold that the trial court did not err when it held that the clause, "[t]his Will shall override any prior allocations described in trust documents," was testamentary and did not result in a revocation of the Trust. We overrule John's sole issue on appeal.
IV. This Court's Ruling
We affirm the order of the trial court.
MIKE WILLSON
JUSTICE March 31, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.