NUMBER 13-23-00043-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE ESTATE OF DORIS FAYE WRIGHT, DECEASED
ON APPEAL FROM THE COUNTY COURT AT LAW OF KLEBERG COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Longoria, Tijerina, and Peña Memorandum Opinion by Justice Longoria
In this probate case, appellant Demry Martin Wright appeals from the trial court’s
order finding that Doris Faye Wright died intestate. In six issues, which we consolidate as
one, Demry challenges the trial court’s order as an abuse of discretion. We reverse and
remand. I. Background 1
Doris passed away on September 21, 2021, and was survived by her four sons,
Demry, Mathew Wright, Patrick Wright, and Thomas Wright. Demry filed an application
for probate of will and issuance of letters testamentary on October 25, 2021, in the
Kleberg County Court. In his application, Demry alleged that on May 7, 2007, Doris
executed a holographic will (2007 will) which had not been revoked. On November 29,
2021, Thomas filed a “Motion to Transfer to County Court at Law.” On November 30,
2021, the Kleberg County Court granted Thomas’s motion to transfer, and the case was
transferred to the Kleberg County Court at Law (trial court).
On July 7, 2022, Thomas filed an amended counter-application for probate of will
in which he alleged that on July 20, 1993, Doris executed a will (1993 will) which had not
been revoked. In his counter-application, Thomas argued that the 2007 will that was “filed
with the Court by Demry,” to the extent it was a valid holographic testamentary instrument,
(1) [did] not purport to revoke the [1993 will] or any prior [w]ills, and could only be construed as a Codicil to the Will submitted herewith, (2) appear[ed] to be written on more than one occasion; (3) contain[ed] two separate dates[;] (4) contain[ed] a curving line over portions of its terms, which line is undated and unsigned; [](5) require[d] clarification as to the terms of the handwritten document itself, and more specifically the terms of the trust mentioned therein including the identity of its corpus, beneficiaries, and trustee(s); (6) was revoked by [Doris] in whole or in part because it indicates that it is “not right” [and] indicates the Decedent “will write new one[.]”
1 We limit our recitation of this case’s background to that which is necessary to resolve the issues
presented on appeal. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).
2 In the alternative, Thomas requested the trial court to enter an order declaring heirship
and appointing an administrator of Doris’s estate in the event the trial court found that
Doris died intestate. See TEX. EST CODE ANN. § 256.101(a).
On August 1, 2022, Demry and Patrick filed a joint original answer generally
denying the allegations in Thomas’s amended counter-application and asserted that the
2007 will was not a codicil to the 1993 will and, in fact, revoked the 1993 will. The response
also requested a declaration of heirship in the event the trial court determined that Doris
died intestate.
The trial court held two hearings regarding Demry and Thomas’s competing
applications for probate on December 7, 2022 and January 7, 2023. At the hearings, the
trial court heard testimony from Demry, Thomas, Patrick, and Matthew. In addition, the
trial court admitted several documents into evidence without objection, including the 1993
will and a notebook containing the 2007 will. Demry testified that Doris’s husband passed
away on May 6, 2006, almost a year before Doris created the 2007 will. Demry explained
that after Doris died, he found the 2007 will inside a lockbox in her bedroom. According
to Demry, the lockbox contained various legal documents.
Under the 1993 will, Doris’s estate was to be distributed equally amongst her four
sons. In contrast, the 2007 will significantly departed from the terms of the 1993 will. For
example, under the 2007 will, Doris’s “home in Kingsville, and other property” was to be
distributed equally amongst Demry, Matthew, and Patrick. Acreage in Goliad was to be
held in trust by Demry, Matthew, and Patrick, with Demry as trustee. Demry was also to
3 receive the “ranch” and the Goliad land “in return for his care of land and my cows.” The
2007 will also contained a provision gifting Thomas acreage in Fannin and $10,000.
However, a line was struck through the words within this provision as follows:
On the second to last page of the 2007 will, Doris expressed her desire for her
family to continue to enjoy the “land at the ranch.” On the last page of the 2007 will, Doris
wrote “I do realize that at some time in future the land will have to be sold or divided,” and
provided her signature under that statement. Underneath this signature, Doris wrote “Not
right,” and provided another signature underneath those words. Underneath this second
signature, Doris wrote “Jan. 16, 2014.” Underneath this date followed a scribbly line which
led to the words, “Will write new one[.]” 4 Demry testified that he did not know when Doris marked out the provision for
Thomas in the 2007 will but stated he believed that in 2007, Doris wanted Thomas to get
the Fannin property and had not written him off the will. Demry explained that Doris had
filed a partition suit to sell the Fannin property in December 18, 2013, which was a short
period before the January 6, 2014 date written in the 2007 will. 2 Demry also testified that
Doris had successfully sold the Fannin property for $286,000. 3 In reference to the “Not
2 A copy of the petition for partition filed by Doris on December 18, 2013 in the 267th District Court
of Goliad County, trial court cause number 13-23-0103-CV, was admitted into evidence.
3 A copy of a “Report of Sale” filed on January 21, 2015 in the 267th District Court of Goliad County,
trial court cause number 13-23-0103-CV, was admitted into evidence. This filing indicates that Doris sold the property at issue in the partition suit for $282,268.00.
5 right” and “Will write new one” language in the 2007 will, Demry stated that he was not
aware that Doris had ever written a new will.
Thomas testified that as far as he knew, all the Fannin property had been sold or
transferred. Thomas explained that he believed Doris treated him differently in the 2007
will because of tension between him and his brothers. Thomas acknowledged the partition
suit and stated that the language “Not right” and “Will write new one” reflected Doris’s
intent to revoke the 2007 will. Thomas also testified that Doris had started a new will, that
Demry and Patrick were part of it, but he did not think he was. Thomas also stated that
Doris did not actually complete a new will and indicated that she had written some notes
in the final pages of the notebook containing the 2007 will but did not sign it. 4
During Matthew’s testimony, he was asked, “When [Doris] wrote the words ‘not
right’ on that document, do you believe that she wanted her children to carry out its terms
after she passed away?”; Matthew responded, “I would believe so.” Later, the trial court
asked Matthew, “Tie in ‘not right’ with I’ll ‘write a new one.’ What does that intent tell you
right there?” Matthew responded, “That intent tells me she didn’t agree with what she
wrote. And then she put the squiggly line down to it and said she was going to rewrite it,
that she was going to write another one.” When asked specifically if Doris meant she
wanted the 2007 will to be followed by the “Will write new one” language, Matthew
responded, “No, she didn’t.” Matthew later stated that Doris did not intend the 2007 Will
“to be the correct document, from what I’m reading, because she said she will rewrite it.”
4 The final pages of the notebook referenced were not admitted as evidence in the record.
6 After the parties presented evidence, testimony, and closing statements, the trial
court orally pronounced its ruling that Doris died intestate. The trial court pronounced that
the 2007 will was not a codicil but a new will that revoked the 1993 will. The trial court
then pronounced that it found Matthew’s testimony to be credible and stated that Matthew
was “testifying against his own interest” and “by his testimony, he loses some of the stuff
that he’s going to get.” The trial court then stated that the 2007 will itself was revoked on
January 16, 2014 “by looking at the ‘not right’ and ‘will write a new one’” language, and
concluded that Doris died intestate.
On January 19, 2023, the trial court signed and entered its “Order Denying
Admittance of Decedent’s 2007 Holographic Will and 1993 Last Will and Testament to
Probate.” In its order, the trial court found, among other things, that
[Doris’s] 2007 Holographic Will complies with the holographic will statu[t]es and is a valid Will and that the 2007 Holographic Will revoked the [1993 Will] which was purported to be [Doris’s] Last Will and Testament and that [Doris’s] May 1, 2007 Holographic Will was revoked by the January 16, 2014[] notations made and signed by [Doris] after her signature of the May 1, 2007 Holographic Will.
The trial court further ordered that Doris died intestate. This appeal ensued.
II. PROBATE APPLICATION
In his sole issue, Demry challenges the trial court’s denial of his probate
application. Specifically, Demry challenges the trial court’s finding that “the 2007
Holographic Will was revoked by some ‘notations’ on it, and that as a result of such
revocation, [Doris] died intestate.”5
5 We note that in his brief, Demry specially states that he does not dispute “the propriety of” the
7 A. Standard of Review & Applicable Law
“A trial court’s ruling on a probate application is generally reviewed under an
abuse-of-discretion standard.” In re Est. of Gaines, 262 S.W.3d 50, 55 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (cleaned up). The trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner without reference to any guiding rules or
principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). “The mere fact a trial
judge may decide a matter within his discretionary authority in a different manner than an
appellate judge in a similar circumstance does not demonstrate that an abuse of
discretion has occurred.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985). Moreover, an abuse of discretion does not occur where the trial court bases
its decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)
(orig.proceeding).
When our review is for abuse of discretion, findings of fact and conclusions of law
help us review the propriety of the trial court’s ruling by providing us with an explanation
for the ruling. See In re J.P.C., 261 S.W.3d 334, 336–37 (Tex. App.—Fort Worth 2008,
no pet.). In a trial to the court, where no findings of fact or conclusions of law are filed, the
judgment of the court implies all necessary findings of fact to support it. Gibson v. Ellis,
126 S.W.3d 324, 335 (Tex. App.—Dallas 2004, no pet.). Where the implied findings of
fact are supported by the evidence, it is our duty to uphold the judgment on any theory of
law applicable to the case. Id.
2007 will’s validity, nor does he dispute that the 2007 will “revoked the prior attested Will dated 1993.”
8 A specific statutory provision governs the procedure a trial court must follow when,
as here, a second application for the probate of a will of the same decedent is filed at a
time when an original application has not been heard. See TEX. EST. CODE ANN.
§ 256.101(a). Section 256.101(a) provides in relevant part:
If, after an application for the probate of a decedent’s will or the appointment of a personal representative for the decedent’s estate has been filed but before the application is heard, 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: (1) hear both applications together; and (2) determine: (A) if both applications are for the probate of a will, which will should be admitted to probate, if either, or whether the decedent died intestate[.]
Id.
To admit a will to probate, a trial court must find that it is valid. In re Est. of
Livingston, 999 S.W.2d 874, 876 (Tex. App.—El Paso 1999, no pet.); see also In re Est.
of Arrington, 365 S.W.3d 463, 466 (Tex. App.—Houston [1st Dist.] 2012, no pet.). To be
admitted to probate, a will must comply with the statutory provisions governing the
formalities to be observed during a will execution. See Brown v. Traylor, 210 S.W.3d 648,
684 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that the proponent for the
admission of a will to probate must establish that “the testator executed the will with the
formalities and solemnities and under the circumstances required by law to make it a valid
will”). A will not executed in accordance with the prescribed statutory requirements is of
no force or effect. In re Est. of Hutchins, 829 S.W.2d 295, 299 (Tex. App.—Corpus
Christi–Edinburg 1992, writ denied); Belgarde v. Carter, 146 S.W. 964, 965 (Tex. Civ.
App.—San Antonio 1912, writ ref’d).
9 All wills must be signed by the testator or by another person on the testator’s
behalf, though a will written wholly in the testator’s handwriting (a holographic will) need
not be attested by subscribing witnesses. See TEX. EST. CODE ANN. §§ 251.051–.052.
The signature may be informal and its location is of secondary importance if the maker
intended the written name or mark to constitute a signature expressing approval of the
instrument as the maker’s will. Id. § 251.051(2)(A); Jones v. Jones, 649 S.W.3d 577, 584–
85 (Tex. App.—Houston [1st Dist.] 2022, no pet.).
Furthermore, § 253.002 expressly provides the requirements for revoking a written
will or a clause or a devise in a written will:
A written will, or a clause or devise in a written will, may not be revoked, except by a subsequent will, codicil, or declaration in writing that is executed with like formalities, or by the testator destroying or canceling the same, or causing it to be destroyed or canceled in the testator’s presence.
TEX. EST. CODE ANN. § 253.002. This statute is the exclusive method for revoking a will
and a testator’s intent to destroy or revoke a will, standing alone, “cannot abrogate the
clear wording of the statute.” Morris v. Morris, 642 S.W.2d 448, 449–50 (Tex. 1982)
(interpreting former § 63 of the Probate Code, predecessor to § 253.002 of the Estates
Code).
“In construing a will, the court’s focus is on the testat[or’s] intent.” San Antonio Area
Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000) (citing Huffman v. Huffman, 161
Tex. 267, 339 S.W.2d 885, 888 (1960)). “This intent must be ascertained from the
language found within the four corners of the will.” Id. (citing Shriner’s Hosp. for Crippled
Child. of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980)). Courts should not focus on
10 “what the testat[or] intended to write, but the meaning of the words she actually used.”
Stahl, 610 S.W.2d at 151; Rekdahl v. Long, 417 S.W.2d 387, 389 (Tex. 1967); Kirk v.
Beard, 162 Tex. 144, 345 S.W.2d 267, 273 (1961). “In this light, courts must not redraft
wills to vary or add provisions ‘under the guise of construction of the language of the will’
to reach a presumed intent.” Lang, 35 S.W.3d at 639 (quoting Stahl, 610 S.W.2d at 151);
see also Welch v. Straach, 531 S.W.2d 319, 322 (Tex. 1975); Huffman, 339 S.W.2d at
888.
“Determining a testat[or’s] intent from the four corners of a will requires a careful
examination of the words used.” Lang, 35 S.W.3d at 639. “If the will is unambiguous, a
court should not go beyond specific terms in search of the testat[or’s] intent.” Id. (citing
Frost Nat’l Bank v. Newton, 554 S.W.2d 149, 154 (Tex. 1977)). If, on the other hand, the
meaning of the instrument is uncertain or “reasonably susceptible to more than one
meaning,” the instrument is ambiguous and extrinsic evidence should be considered to
ascertain the testator’s intent. See Davis v. Shanks, 898 S.W.2d 285, 286 (Tex. 1995).
“A court must construe a will as a matter of law if it has a clear meaning.” Knopf v. Gray,
545 S.W.3d 542, 545 (Tex. 2018). “Whether a will is ambiguous is a question of law for
the court.” Id.
Generally, a construction which would render the decedent intestate as to any part
of their estate is not favored. See McGill v. Johnson, 799 S.W.2d 673, 676 (Tex. 1990).
“The fact that [a testator] left a will implies that [she] did not intend to die intestate.”
Ferguson v. Ferguson, 45 S.W.2d 1096, 1097 (Tex. 1931).
11 B. Discussion
As mentioned above, the trial court’s order concluded that “[Doris’s] May 1, 2007
Holographic Will was revoked by the January 16, 2014[] notations made and signed by
[Doris] after her signature of the May 1, 2007 Holographic Will.” The order further
concluded that Doris died intestate. In this case, the central dispute between the parties
is whether Doris revoked the 2007 will with the language “Not right” and “Will write new
one.” See TEX. EST. CODE ANN. § 253.002.
Demry argues, among other things, that the language at issue is “patently not
revocatory in nature” and “do[es] not rise to language upon which revocatory intent can
be legitimately appended.” Neither of the parties have provided any case authorities
holding the language at issue, or similar language, constitutes revocatory intent, and we
have found none. Both parties cite to Dean v. Garcia, which concluded that the words
“CANCILED [sic]” and “VOID” were “words of cancellation” sufficient to revoke a codicil.
795 S.W.2d 763, 764–66 (Tex. App.—Austin 1989, writ denied). Thomas argues that
Dean is “illustrative of how few words are necessary to revoke a testamentary instrument.”
However, Demry argues that the language at issue “does not come remotely close to the
language in Dean” and does not consitute “present and clear revocative language.” We
agree that the language “Not right” and “Will write new one” are not clear “words of
cancellation” sufficient to revoke the 2007 will. See id.
Demry further agues that the language “Will write new one” refers to “an intent to
undertake an act in the future . . . and therefore do[es] not comply with the legal
12 requirement that revocatory language must constitute a present intent to revoke.” “A
present intent to change or revoke a testamentary instrument in the future cannot
accomplish revocation of the instrument, nor is it evidence of the revocation.” Powell v.
Powell, 554 S.W.2d 850, 856 (Tex. App.—Tyler 1977, writ ref’d n.r.e.). Here, the language
“Will write new one” cannot be reasonably interpreted to constitute a present intent to
revoke the 2007 will. See id. A liberal reading of the language, at most, suggests an intent
to create a new will in the future, not an intent to revoke the current will wherein this
language appears; therefore, we conclude that the “Will write new one” language did not
accomplish the 2007 will’s revocation nor is it evidence of its revocation. See id.; see also
Trim v. Daniels, 862 S.W.2d 8, 10 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (“A
holographic will should be liberally construed to effect the testator’s intent.”).
Thomas argues that the trial court properly considered extrinsic evidence to
determine that Doris intended to revoke the 2007 will through the use of the disputed
language. In order for consideration of extrinsic evidence to be proper, the trial court must
have first found that the disputed language was ambiguous. See Shanks, 898 S.W.2d at
286. Nothing in the trial court’s order indicates that it found the disputed language to be
ambiguous, and no findings of facts or conclusions of law were requested by the parties
or issued by the trial court. Even if the trial court impliedly found the disputed language to
be ambiguous, whether a will is ambiguous is a question of law. Knopf, 545 S.W.3d at
545. Questions of law are reviewed de novo, and no deference is accorded to the trial
13 court’s decision. See In re Estate of Slaugther, 305 S.W.3d 804, 808 (Tex. App.—
Texarkana, 2010 no pet.).
When a will contains an ambiguity, that ambiguity may be classified as latent or
patent. In re Estate of Brown, 922 S.W.2d 605, 608–09 (Tex. App.—Texarkana 1996, no
writ). A patent ambiguity is one apparent on the face of the will, and arises on the reading
of the will from the words themselves. Id. at 608. A latent ambiguity exists when the will
appears to convey a sensible meaning on its face but cannot be carried out without further
clarification. Id. at 608–09. As explained above, the disputed language does not constitute
clear “words of cancellation” or contain a present intent to revoke the will; thus, we find
no patent ambiguity. See Dean, 795 S.W.2d at 764–66; Powell, 554 S.W.2d at 856.
Similarly, we find no latent ambiguity because the words do not sensibly convey a present
intent to revoke the will. See Powell, 554 S.W.2d at 856; see also Lang, 35 S.W.3d at 639
(“Th[e testator’s] intent must be ascertained from the language found within the four
corners of the will.”); Stahl, 610 S.W.2d at 151 (“The question is not what the testat[or]
intended to write, but the meaning of the words she actually used.”). Therefore, the trial
court erred to the extent it found the disputed language ambiguous as a matter of law and
when it considered extrinsic evidence to determine the meaning of the disputed language.
Based on the foregoing, we hold that the trial court abused its discretion when it
concluded that the disputed language revoked the 2007 will. See TEX. EST. CODE ANN.
§ 253.002; see also In re Est. of Gaines, 262 S.W.3d at 55. As shown above, the trial
court’s order was arbitrary because it was made without reference to any guiding rules or
14 principles. See In re Est. of Gaines, 262 S.W.3d at 55; Cire, 134 S.W.3d at 838–39; see
also Ferguson, 45 S.W.2d at 1097 (“The fact that [a testator] left a will implies that [she]
did not intend to die intestate.”); McGill, 799 S.W.2d at 676 (“Under Texas law, several
presumptions guide the interpretation of wills. A construction which would render the
decedent intestate as to any part of his estate is not favored.”). Accordingly, we sustain
Demry’s sole issue. 6
III. CONCLUSION
We reverse the trial court’s order finding that Doris died intestate and remand the
case for further proceedings.
NORA L. LONGORIA Justice
Delivered and filed on the 21st day of November, 2024.
6 Having sustained Demry’s sole issue, we do not reach Demry’s other arguments as they are not
dispositive to our resolution of the appeal. See TEX. R. APP. P. 47.1.