Opinion
No. 05-06-00935-CV
Opinion Filed May 15, 2007.
On Appeal from the Probate Court No. 1 Collin County, Texas Trial Court Cause No. PB-001-699-05.
Before Justices MORRIS, WRIGHT, and FITZGERALD Opinion By Justice WRIGHT.
MEMORANDUM OPINION
Elbert Eddie Griffin appeals the trial court's order admitting the will of Holman McElreath Griffin to probate. In a single issue, appellant contends the will should not have been accepted because his step-mother, Margaret Griffin, failed to meet the requirements under section 85 of the Texas Probate Code. We overrule appellant's sole issue and affirm the trial court's order.
Appellant specifically complains that appellee failed to meet the requirements of section 85 of the probate code because the evidence is insufficient to (1) show the contents of the will, and (2) overcome the presumption that the will had been revoked. After reviewing the record, we cannot agree. When, as here, no findings of fact or conclusions of law are requested or filed, we imply all necessary findings in support of the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). If a reporter's record is included in the record on appeal, the implied findings may be challenged for legal and factual sufficiency. Id.; Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam).
Following the trial before the court in this case, the parties did not request and the trial court did make findings of facts and conclusions of law. Although the trial court's order includes statements that could be interpreted as findings of fact, such "findings" do not meet the requirements of Texas Rule of Civil Procedure 299a, which provides findings of fact must be filed separately from the judgment. Tex. R. Civ. P. 299a; Casino Magic Corp. v. King, 43 S.W.3d 14, 19 n. 6 (Tex.App.-Dallas 2001, pet. denied). Accordingly, we use the standard of review applicable to cases where no findings have been requested or filed. Casino Magic Corp., 43 S.W.3d at 20.
Section 85 of the probate code provides the requirements for proving a "written will not produced in court." Tex. Probate Code Ann. § 85 (Vernon 2003). Such a will shall be proved in the same manner as a written will produced in court, however, the proponent must also show the cause of its nonproduction and the contents of the will "must be substantially proved by the testimony of a credible witness who has read it or heard it read." See id.
Appellant first complains we must reverse the trial court's order because there is no evidence showing the content of the will. Because appellant challenges the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate on appeal that no evidence supports the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). We view the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We sustain a no evidence issue only if there is no more than a mere scintilla of evidence proving the element of the claim. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 520 (Tex. 2002).
Here, the record shows appellant and appellee stipulated that the "signatures on [the photocopy of the will and codicils] are authentic and genuine, that the documents were signed by the parties who signed them for the purpose that they serve as a will, and were by persons who were in observance as witnesses to the will, that everyone had testamentary capacity or witness capacity, and that the documents were valid at the time of their execution." By so stipulating, the parties necessarily stipulated that the documents and their contents were true and correct copies of the originals. Moreover, appellee testified that she was with appellant when he executed the will and she submitted her copy of that will for probate. After reviewing the record under the appropriate standard, we conclude the evidence is legally sufficient to prove the content of the will.
Appellant next complains the evidence is factually insufficient to support the trial court's determination that Griffin did not revoke the will. When a party without the burden of proof challenges the factual sufficiency of the evidence to support an adverse finding, the party must demonstrate that there is insufficient evidence to support the adverse finding. Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex.App.-Austin 1992, no writ). We consider and weigh all of the evidence and set aside the verdict only if the evidence that supports the finding is so weak as to be clearly wrong and manifestly unjust. Long v. Long, 196 S.W.3d 460, 464 (Tex.App.-Dallas 2006, no pet.). In making this review, we are not a fact finder. We will not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached. Id.; Bright v. Addison, 171 S.W.3d 588, 595-96 (Tex.App.-Dallas 2005, pet. dism'd). The amount of evidence necessary to affirm a judgment is far less than necessary to reverse. Bright, 171 S.W.3d at 595-96.
The proponent of a will must show the will has not been revoked. See Tex. Prob. Code Ann. § 88(b)(3) (Vernon 2003). When, as here, the original will cannot be found, its absence creates a rebuttable presumption of revocation. In re Estate of Capps, 154 S.W.3d 242, 245 (Tex.App.-Texarkana 2005, no pet.). However, that presumption may be overcome by proof showing (1) circumstances contrary to revocation, or (2) the will was fraudulently destroyed by some other person. Id. (citing Bailey v. Bailey, 171 S.W.2d 162, 165 (Tex.Civ.App.-Amarillo 1943, no writ)).
Here, the record shows appellee was with Griffin when he signed his will and that he took it and put it in his safe. Appellee did not have access to the safe, and did not see the will again. According to appellee, Griffin did not at any time indicate to her that he intended to or had revoked his will or the codicils. Donna Haynes, a legal assistant in the offices of the attorney who drafted the wills, testified that shortly before Griffin died, he called and told Haynes he wanted to make another codicil to the will. He did not indicate he intended to revoke the will, but only that he wanted to add another codicil. Thus, the record contains evidence showing circumstances contrary to the presumption of revocation. See Brown v. Traylor, 210 S.W.3d 648, 675 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (testimony that to witness's knowledge testator did not revoke will sufficient evidence of nonrevocation); Capps, 154 S.W.3d at 245 (same). Further, the record shows that about eighteen months before his death, Griffin took the will from the safe and showed it to appellant. Thus, appellant knew his bequest under the will was not as beneficial to him as his share of the estate would be if Griffin died intestate. Shortly before Griffin died, appellant opened the safe and removed its contents. This evidence supports a reasonable inference that the will was fraudulently destroyed. See Brown, 210 S.W.3d at 675. Although the record also contains evidence of marital discord between appellee and Griffin, and that the will was not in the safe when appellant opened it, the trial court as the fact finder was free to disbelieve appellant's version of the evidence and conclude appellee met her burden to overcome the presumption of revocation. See Long, 196 S.W.3d at 464. Considering all of the evidence, we cannot conclude the evidence supporting the trial court's determination is so weak as to be clearly wrong and manifestly unjust. After reviewing the record under the appropriate standards, we conclude the evidence is legally sufficient to show the contents of the will and factually sufficient to support the trial court's determination that the will had not been revoked. Thus, we overrule appellant's sole issue.
On cross-examination, appellee testified she thought he put it in the safe because that is where he kept important papers.
Accordingly, we affirm the trial court's order admitting Griffin's will to probate.