In In the Estate of Setser, the decedent signed a 1993 will naming his daughter as the sole beneficiary. No. 01-15-00855-CV, 2017 Tex. App. LEXIS 937 (Tex. App.—Houston [1st Dist.] February 2, 2017, no pet. history). Later, in 2014, he signed a hand-written will naming his good friend and roommate Heim as the sole beneficiary of his estate. This 2014 will stated: “I, Frankie Lee Setser will my property to Charles Edward Heim, 2748 County Road 32, Angleton, Texas 77515-7749.” That was it. The trial court rejected this will as being too conclusory and vague to be operable and admitted the 1993 will to probate. Heim appealed.

The court of appeals reversed, holding that the will was sufficiently written. After discussing the standards for interpreting wills, the court discussed hand-written wills:

A handwritten will is made with the requisite formalities so long as it is in the testator’s handwriting and signed by him. The will need not be dated; accordingly, if a date appears on the document it need not be in the testator’s hand. Nor does the will need to name an executor or other personal representative of the estate in order to be valid. Handwritten wills may be very brief and informal and nonetheless be valid. A will need not contain an express revocation clause in order to revoke a prior one. Absent a revocation clause, a new will impliedly revokes a prior one to the extent of any inconsistency. If it makes a contrary disposition of the testator’s entire estate, the new will completely revokes the prior one. Revocation is usually but not always a question of fact. Once prima facie proof of the possibility of revocation is introduced, the proponent of a prior will has the burden to prove that it was not revoked.

The court of appeals noted that the trial court reasoned that Setser’s use of the term “property” without qualification rendered the 2014 will too vague or ambiguous to enforce. The court disagreed and held that, when used without qualification, the term “property” is unambiguous. “When used in a will, an unqualified reference to “property” encompasses everything of exchangeable value that the testator owned. ‘Property’ is synonymous with ‘estate’ and includes assets of every category.” Id. Therefore, the court concluded:

As the ordinary meaning of “property” is well-settled and Setser used that term without restriction in his handwritten 2014 will, the will is susceptible to only one interpretation—it unambiguously bequeaths all of Setser’s property to Heim. Apart from the parties’ dispute about the meaning of “property,” it is undisputed that Setser’s will effected an entirely different disposition of his estate than his prior 1993 will, inasmuch as the 2014 will bequeathed his property to Heim and the 1993 will bequeathed it to Boggs. Thus, the 2014 will impliedly revoked the 1993 will as a matter of law. As Boggs does not challenge the trial court’s finding that the 2014 will was made with the requisite formalities and the record contains some evidence that it was made with the requisite formalities, we conclude that the trial court erred by not admitting Setser’s handwritten 2014 will to probate instead of his prior 1993 will.

Id. The court reversed and rendered that the 2014 will should be admitted to probate.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law