In In re Estate of Aldrete, a decedent’s son from a first marriage had a 1981 will admitted to probate, which left real property to him. No. 04-20-00426-CV, 2022 Tex. App. LEXIS 322 (Tex. App.—San Antonio January 19, 2022, no pet. history). Later, a second son from a second marriage filed a motion to set aside the 1981 will and admit a newer 2008 will, which left the real property to the decedent’s second wife, the second son’s mother. After the court granted the motion, the first son appealed. The first son initially complained about the process followed by the trial court. The court of appeals disagreed, stating:

Appellant argues that because appellees never initiated a “separate” proceeding to probate the 2008 will, the trial court erred in not analyzing the case as a “will contest,” and errantly analyzed the case as a second application for probate. Section 256.102—governing the procedure on filing of a second application for probate after first will has been admitted—provides in relevant part: “If, after a decedent’s will has been admitted to probate, an application is filed for the probate of a will of the same decedent that has not previously been presented for probate, the court shall determine: (1) whether the former probate should be set aside; and (2) if the former probate is to be set aside, whether: (A) the other will should be admitted to probate . . . “Tex. Est. Code § 256.102. Appellee’s motion to set aside order admitting the 1981 will to probate requested the following relief: “[Appellees] pray . . . that the former probated will dated 7/15/81 be set aside; that the ‘decedent’s’ will dated 10/14/08 be admitted to probate; that Jessica Galvan, be appointed Executrix; [and] that letters testamentary be issued to her . . .” Given the substance of the motion and its requested relief, appellees clearly sought to both contest the 1981 will and admit the 2008 will. Because appellees sought probate of the 2008 will after the 1981 will was admitted to probate, the trial court was required to (“shall”) determine whether the 1981 will should be set aside and, if so, whether the 2008 will should be admitted to probate. See Tex. Est. Code § 256.102. The trial court did not err in doing so.

Id. The court also held that a former accountant had sufficient knowledge of the decedent’s hand writing to prove up his signature on the 2008 will: “Here, the record discloses the witness knew decedent and his wife since 2002, did bookkeeping work for both for twelve years, and was familiar with decedent’s signature based on bookkeeping documents. This evidence is not so weak as to make the trial court’s finding that the witness was familiar with decedent’s signature clearly wrong and manifestly unjust.” Id.

The court also held that witnesses did not have to have medical training to testify regarding mental competence:

Appellant’s complaint is that the notary could not competently testify as to whether decedent was of sound mind because she did not have “any medical training.” The law, however, does not require medical training. The notary testified to the following: (1) when she walked into decedent’s hospital room, he was discussing documents with a nurse; (2) she had decedent read the will prior to signing; (3) she read a portion of the will to decedent; (4) decedent verbally confirmed he was aware of what he was signing and where he was; (5) decedent responsively answered her questions; (6) decedent verbally acknowledged the witnesses in the room; (7) decedent was “spot on” in interactions, did not pause in answering questions, and was “real matter of fact”; and (8) decedent confirmed he was leaving his property to his wife. We are satisfied the notary’s conversation and observations are sufficient to reasonably form an intelligent opinion decedent was of sound mind. Accordingly, the evidence supporting the trial court’s finding is not so weak as to make the finding clearly wrong and manifestly unjust.

Id. The court finally found that the medical expert, who was an anesthesiologist, was competent to testify regarding the decedent’s capacity to execute a will:

Appellant also challenges the trial court’s finding that appellee’s medical expert found the decedent to be “oriented, alert and communicative.” The expert is a board certified anesthesiologist who has administered operative anesthesia to over 35,000 patients during his medical career. Based on his review of 639 pages of medical records, the expert opined decedent was competent to execute the will at the time it was executed—hours before the administration of anesthesia. The medical records disclosed attendant nurses and the anesthesiologist found multiple times that decedent was alert, oriented, responsive, and communicative prior to the administration of anesthesia. These are medical conclusions—not legal conclusions. After being confronted with the legal definition of “testamentary capacity” on cross-examination, the expert opined that decedent understood the business matter in which he was engaged and had the capacity to understand the effect of what he was signing.  The expert’s conclusions are not so against the great weight of the evidence as to be manifestly wrong.


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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…

[email protected]

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