In Castello v. Ex’r of the Est. of Castello, the decedent died leaving a will that left his property to his wife “for life” and then to his three children by a prior marriage. No 03-22-00012-CV 2023 Tex. App. LEXIS 4454 (Tex. App.—Austin June 23, 2023, no pet. history). The wife filed an opposition, alleging decedent’s lack of testamentary capacity and attaching an earlier will that she sought to probate. The proposed executor filed a motion for summary judgment, arguing that there is no genuine issue of material fact regarding decedent’s testamentary capacity and seeking to dismiss the opposition. He attached to his motion the will, the affidavit of the attorney who drafted the will, and a warranty deed. The wife filed a response and attached her affidavit and excerpts from the attorney’s deposition. The trial court granted the motion and admitted the new will to probate, and the wife appealed.

The court of appeals reversed, holding that the wife’s affidavit provided sufficient facts that created a fact question on mental capacity:

Cindy’s evidence shows that Decedent’s physical health and mental functioning had been declining since his stroke in 2006, and that by 2008 he could not manage or understand the day-to-day operations or functions of his business and needed a twenty-four-hour caregiver. It also shows that during the period the will was executed, Decedent was on medication for Alzheimer’s disease; did not recognize his family members; could not remember what he did during the day or what he ate (or even whether he ate) while Cindy was away at work; did not possess sufficient memory to make decisions for himself, including ordering at a restaurant; and relied on Cindy to speak to doctors or others on his behalf. Cindy’s evidence also showed that she, having known Decedent as his wife for over twenty years when he died and having been around him every day, believed that at the time of the 2012 Will’s execution Decedent did not have the mental capacity to execute a will, understand the effect of making a will or know the general nature and extent of his property or his next of kin and the natural objects of his bounty, or make “any other decisions that would require him to think and act on his own accord with an understanding of what he was doing.” Additionally, Steinhauser testified that he had not discussed the specific contents of Decedent’s estate with him, despite the statement in his affidavit to the contrary, creating an issue of fact on whether Steinhauser could have opined on the aspect of Decedent’s testamentary capacity requiring him to know the “general nature and extent of his property.” Cindy’s evidence, in the form of her affidavit, is of the type that both shows a lack of testamentary capacity and is probative of such lack at the time the 2012 Will was executed.

Although Mark contends that Cindy’s affidavit is “self-serving and conclusory,” many of the statements therein are of the same character as those in Steinhauser’s affidavit. That is, each Steinhauser and Cindy aver their respective—and opposing—beliefs about whether Decedent “understood the business in which he was engaged, the effect of making a will, the general nature and extent of his property, and his next of kin and the objects of his bounty.” But, unlike Cindy’s affidavit, Steinhauser’s does not describe any facts from which his conclusions are drawn, except to state that after Decedent “confirmed that the Will expressed his desires,” he and his staff witnessed the will. To determine on summary judgment that Steinhauser’s beliefs conclusively establish Decedent’s testamentary capacity when countered by Cindy’s similarly stated beliefs—and more—would require determinations as to the weight and credibility of the evidence, which is the province of the factfinder. Additionally, although the 2012 warranty deed likely weighs against Cindy’s position, it should be considered by the factfinder along with the entirety of the evidence and does not conclusively establish that Decedent had testamentary capacity on the date of the 2012 Will’s execution, in light of Cindy’s conflicting evidence.

We hold that Cindy presented sufficient evidence to show the existence of a material fact issue with respect to Decedent’s testamentary capacity at the time of the 2012 Will’s execution. Accordingly, we conclude that the trial court erred in granting Mark’s motion for summary judgment and admitting the 2012 Will to probate.


Email this postTweet this postLike this postShare this post on LinkedIn
Photo of David Fowler Johnson David Fowler Johnson

[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…

[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