Opinion
NO. 03-17-00101-CV
01-10-2018
Ulises Ramirez, Appellant v. Santiago Galvan and Daniel Galvan, Appellees
FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-16-001347 , HONORABLE GLADYS BURWELL, JUDGE PRESIDING MEMORANDUM OPINION
This is an appeal from the judgment of the probate court of Travis County denying the application for probate of the will of Olivia Ramirez as a muniment of title. The application was filed more than four years after the testator's death. Appellant is Ulises Ramirez, husband of Olivia. Appellees are Santiago and Daniel Galvan, Olivia's sons by a previous marriage. This Court will reverse the judgment.
In his application to probate the will, Ulises asserted that he was not at fault for failing to offer the will to probate within four years of his wife's death. His stepsons contested the application. After hearing, the court rendered judgment denying the application.
Ulises was originally from Veracruz. His first language is not English. Although he had lived here for some years, his comprehension of English was such that he testified through an interpreter at the probate hearing. Olivia and Ulises married in 1997. After their marriage, they bought a house located on Webberville Road in Austin. She was employed by the school district and had a retirement account with the Teacher Retirement System, worth between $38,000 and $48,000 at her death.
At age fifty-three, Olivia suffered from advanced pancreatic cancer. Knowing that she did not have long to live, she began putting her affairs in order. Without Ulises's knowledge, she obtained counsel who drafted her will. By the will, Olivia appointed Ulises executor. She bequeathed her Ford truck to her son, Santiago, and directed Ulises to distribute certain personal items pursuant to a document separate from the will. All the rest of her property, including her interest in the house, she left to Ulises. About the same time, with Ulises's consent, Olivia changed the beneficiary designation on her retirement account from Ulises to her sons.
Olivia died on June 8, 2010, less than a month after the will had been executed. She had been married to Ulises for thirteen years.
Shortly before Olivia died, the witnesses to the will delivered it to Ulises. After receiving the will, and even before she died, Ulises set about trying to carry out Olivia's wishes as expressed in her will. He paid off her outstanding debts with money from his own pocket. After her death, when her bills came in, he paid them in the same way. In some manner, he transferred title to the truck to Santiago. He distributed Olivia's personal items as directed in the non-testamentary document. Because Olivia left everything else to him, he did not think it was necessary to do anything further.
Ulises continued living in the house on Webberville Road and paid off the mortgage with his separate funds. During this time, he maintained the house and paid the ad valorem taxes on the property. After living there for six more years, he decided to sell the house in the Spring of 2016. It was only then that he became aware of the necessity to probate Olivia's will. When the contract of sale was delivered to the title company, one of its employees told Ulises of the title problem and advised him to consult an attorney. This he did, and the application to probate the will as a muniment of title was promptly filed.
Pursuant to section 256.003(a) of the Texas Estates Code, a will must be submitted for probate within four years of the testator's death. After expiration of the four-year period, a will may be probated as a muniment of title so long as the proponent is not in "default." As used in section 256.003(a), "default" means failure to probate a will because of the absence of reasonable diligence by the party offering the instrument. In re Estate of Allen, 407 S.W.3d 335, 339 (Tex. App.—Eastland 2013, no pet.). The burden is on the party applying for the probate to demonstrate that he was not in default. In re Estate of Campbell, 343 S.W.3d 899, 902 (Tex. App.—Amarillo 2011, no pet.). Whether the party applying for probate is in default is usually a question of fact. Id. at 903. Mere ignorance of the law does not excuse failure to file probate proceedings within the four-year period. See Brown v. Byrd, 512 S.W.2d 753, 757 (Tex. Civ. App.—Tyler 1974, no writ).
Texas case law is quite liberal in permitting a will to be offered as a muniment of title after the four-year limitation period has expired. In re Estate of Allen, 407 S.W.3d at 339; Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no writ). Referring to the statutory predecessor of section 256.003(a), the Waco Court of Civil Appeals, more than ninety years ago, observed, "The tendency of our courts has been from its [sic] earliest decisions to permit wills to be filed after the four-year period where there is any evidence of probative force which would excuse the failure to offer the will sooner." Armstrong v. Carter, 291 S.W. 626, 627 (Tex. Civ. App.—Waco 1927, no writ). Indeed, the proponent's belief that probate was unnecessary has been found a sufficient excuse. See Matter of Estate of Hammack, No. 12-15-00246-CV, 2016 WL 1446083 (Tex. App.—Tyler Apr. 13, 2016, no pet.) (mem. op.); Chovanec, 881 S.W.2d at 137; Kamoos v. Woodward, 570 S.W.2d 6, 8 (Tex. Civ. App.—San Antonio 1978, writ ref'd n.r.e.).
In Chovanec, the applicant was not aware that it was necessary to probate his wife's will. See 881 S.W.2d at 137. Also he did not believe probate was necessary because he inherited everything from his wife and he believed that, in any event, the tract of land involved was his separate property. See id. The court concluded that this evidence showed more than simply the applicant's ignorance of the law and was, instead, evidence of excuse. See id.
In the instant case, the probate court's judgment simply provided that the application for probate be "denied." By denying the application, the court must have concluded that Ulises failed to show that he was not in default.
By his first issue, Ulises argues that the evidence conclusively established that, as a matter of law, he was reasonably diligent and, therefore, not in default. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (applying legal-sufficiency standard of review). Alternatively, Ulises complains that the probate court's finding that he failed to show reasonable diligence is so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust. See Crain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (applying factual-sufficiency standard of review).
In reviewing Ulises's "matter of law" challenge, we examine the record for evidence that supports the probate court's implied finding, while ignoring all evidence to the contrary. See Francis, 46 S.W.3d at 241. Such examination reveals that Ulises had exclusive possession and control of the will for six years after Olivia's death. He had at least some quasi-legal experience in completing immigration proceedings so as to allow him to remain in this country, and he had managed to obtain a divorce from his wife in Mexico through the offices of the Mexican Embassy. He testified that he knew he had to obtain a marriage license before he married Olivia and, finally, he had the experience of purchasing the house on Webberville Road. Because there was some evidence in support of the probate court's finding, the "matter of law" challenge is without merit.
By his second issue, Ulises asserts the probate court's implied finding is contrary to the great weight and preponderance of the evidence. Even before Olivia died, Ulises commenced paying her debts. Right away, he distributed her property according to her wishes, as expressed in the will and in the non-testamentary document. On the belief that the intent of the will had been accomplished, he continued to live in the house believing that he now was the sole owner. Ulises testified that he thought the way Olivia "willed her interest" in the house was sufficient. As soon as he learned of the title problem, he consulted counsel as advised by the title company, and the application for probate was promptly filed. It appears that Ulises did not offer the will for probate, not through any lack of diligence, but because he did not realize any further act was necessary.
This Court has considered and weighed all the evidence, some of which has been set out in this opinion, and has concluded that the probate court's finding is so against the great weight and preponderance of the evidence so as to be clearly wrong and unjust.
The judgment is reversed and the cause is remanded to the probate court for further proceedings.
/s/_________
Bob E. Shannon, Justice Before Justices Puryear, Goodwin, and Shannon* Reversed and Remanded Filed: January 10, 2018 * Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).