In In re Estate of Silverman, a trial court granted a will contestant’s summary judgment and denied a handwritten document’s admission to probate as the last will of the decedent. No. 14-18-00256-CV, 2019 Tex. App. LEXIS 4579 (Tex. App.—Houston [14th Dist.] June 4, 2019, no pet. history). The proponent argued that the document could be testamentary in character as it appointed the decedent’s office manager as an executor. The proponent appealed. The court of appeals first discussed a court’s duty to admit a document to probate:

A court’s first duty in a proceeding to admit a writing offered for probate is to determine whether the writing is testamentary in character. If the document is not of testamentary character it is not a will and cannot be admitted to probate. We must ascertain the testator’s intent from the language used within the four corners of the instrument offered for probate. It is essential that the maker shall have intended to express his testamentary wishes in the particular document offered for probate.

The requisite testamentary intent does not depend upon the maker’s realization that he is making a will, or upon his designation of the instrument as a will, but rather upon his intention to create a revocable disposition of his property to take effect after his death. Generally, to be testamentary in character, a writing must possess certain essential characteristics. The writing must be revocable during the maker’s lifetime. The writing must be ineffectual as a transfer of any rights or interest before death. Further, courts often state that the writing must operate to transfer, convey, or dispose of the testator’s property upon death.

Id. The court also discussed admitting a handwritten document to probate. The court stated that it would not ordinarily construe a purported will before its admission to probate. “On occasion, however, courts have construed purported wills before admitting them to probate. For example, it may be necessary or appropriate to construe a writing offered for probate to decide whether it is testamentary. Additionally, courts have construed disputed language in a purported will before its admission to probate when an interested party seeks a declaratory judgment, as the Contestants have done here.” Id.

The court then held that it construed the handwritten document at issue as naming an executor but was ambiguous as to whether it transferred or devised any property. The contestants argued that the will gave the executor rights and powers of an executor but that person had been devised no ownership rights to any property. The executor argued that the phrase “Karen Grenrood . . . has all legal rights to my estate in the case of my untimely or timely death” is an effective devise of all property. The court of appeals concluded that both sides’ interpretations were reasonable: “But whether the handwritten document does or does not dispose of Silverman’s property is a matter for the factfinder to decide. If the document disposes of property then it may be admitted to probate, presuming other testamentary characteristics exist.” Id. The court also held that the document should have been admitted to probate because it named an executor. The court concluded: “In sum, we hold that the probate court erred by denying the handwritten document admission to probate on the ground that it lacks testamentary intent because it does not transfer or dispose of property. We reach this conclusion for two reasons: (1) the document is ambiguous whether it disposes of property; and (2) presuming it does not dispose of property, it names or appoints an executor, as the parties agree.” Id.

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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