In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00037-CV
IN THE ESTATE OF FRANCES VOGELSANG WALZEL, DECEASED
On Appeal from the 20th District Court Milam County, Texas1 Trial Court No. CV41233, Honorable James Lee Carroll, Presiding
October 2, 2023 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
In this will contest, appellant, Amy Walzel, appeals from an order granting
summary judgment in favor of appellees, Franci Denio and Kyle Walzel. We affirm in part
and reverse and remand in part.
1 This appeal was transferred to this Court from the Third Court of Appeals by docket equalization
order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. BACKGROUND
Amy Walzel, Franci Denio, and Kyle Walzel are children of the decedent, Frances
Vogelsang Walzel.2 Frances was married to Joseph from 1969 until his death in 2010.
During their marriage, Frances and Joseph acquired extensive real property in Milam
County. Joseph died intestate, and Frances and her children acquired undivided interests
in the couple’s real property. Frances died on February 23, 2021, leaving a self-proving
will dated March 30, 2020, which bequeathed her entire estate to her children, Curtis,
Kyle, Joel, Franci, and Amy. The will devised a ninety-two-acre tract of land to Amy, but
the devise is conditioned on Amy conveying her undivided interest in her grandmother’s
land (eighty-three acres) to Joel in order to obtain any portion of Frances’s estate. The
will contained an in terrorem, or forfeiture, clause that applies to any beneficiary who
“directly or indirectly, contests or attacks” the will or any of its provisions.
On March 9, 2021, Franci and Kyle, as co-independent executors, filed an
application to probate the will. Before there was a hearing to prove up the will, Amy filed
an answer and petition contesting the application, alleging that Frances lacked
testamentary capacity when she executed the will and that the will was the result of
Franci’s undue influence over Frances. After the probate was transferred to district court,
Franci and Kyle filed an answer and counterclaim, wherein they sought a declaratory
judgment that Amy’s contest invoked the in terrorem clause in the will.
Franci and Kyle filed traditional and no-evidence motions for summary judgment.
In their traditional motion, they attached the self-proved will and alleged a prima facie
2 To aid in clarity, we will refer to the deceased as Frances and to her children by their first names.
2 case on the validity of the will and testamentary capacity. The no-evidence grounds
alleged that Amy did not have any evidence to prove undue influence or to establish just
cause and good faith in bringing and maintaining the will contest. Amy filed a response
and attached summary judgment evidence. At a hearing on the summary judgment
motions, the trial court considered Franci’s and Kyle’s objections and motion to strike
portions of Amy’s summary judgment evidence and undisclosed legal theories. The
motion to strike was granted. The trial court granted the motion for summary judgment,
admitted the will to probate, issued letters testamentary to Franci and Kyle, and granted
the declaratory relief. Amy timely filed this appeal.
ANALYSIS
Issue One: Exclusion of Medical Records
In her first issue, Amy contends the trial court abused its discretion in striking
medical records3 from her response to the motion for summary judgment. We review a
trial court’s evidentiary ruling for an abuse of discretion. Horizon/CMS Healthcare Corp.
v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). A trial court abuses its discretion if its decision
is arbitrary, unreasonable, and without reference to any guiding rules and principles.
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241−42 (Tex. 1985). Unless
the trial judge’s erroneous evidentiary ruling probably caused the rendition of an improper
judgment, we will not reverse the ruling. Auld, 34 S.W.3d at 906.
3 The trial court also sustained a hearsay objection to a portion of Amy’s affidavit and an objection to the death certificate as not being timely disclosed. Amy does not complain of the trial court’s exclusion of this evidence on appeal.
3 Rule 193.6 of the Texas Rules of Civil Procedure provides that a party who fails to
make a discovery response in a timely manner may not introduce in evidence the untimely
disclosed material or information unless the court finds good cause or lack of unfair
surprise. TEX. R. CIV. P. 193.6(a). Evidentiary exclusion under Rule 193.6 is applicable
in summary judgment proceedings. Fort Brown Villas III Condo. Ass’n, Inc. v. Gillenwater,
285 S.W.3d 879, 881−82 (Tex. 2009).
In this case, Amy filed her will contest in March of 2021. The parties entered into
a Rule 11 agreement providing, in part, the “‘discovery period’ under the TRCP began
April 18, 2021.” When, as here, a suit is not governed by a Level I or Level III discovery
control plan, discovery must be conducted in accordance with a Level II discovery plan.
TEX. R. CIV. P. 190.3(a). As applicable, Rule 190.3 states that discovery ends “nine
months after the earlier of the date of the first oral deposition or the due date of the first
response to written discovery.” TEX. R. CIV. P. 190.3(b)(1)(B)(ii). Thus, discovery in this
case ended on January 18, 2022, nine months after the agreed discovery period began.
The motion for summary judgment was filed on February 3, 2022, after the
discovery period closed on January 18. Amy waited until four months after the discovery
period ended to subpoena Frances’s medical records. On May 19, Amy filed amended
disclosures and produced some medical records. Amy filed her response to the motion
for summary judgment on July 1, and she attached medical records and a business
records affidavit from Baylor Scott & White Hospital.
The day before the summary judgment hearing, Franci and Kyle filed their
objections and motion to strike contending that the medical records were not timely
4 disclosed under Texas Rule of Civil Procedure 194.2(b)(6), and requested the records be
excluded pursuant to Rule 193.6. As a part of their motion, Franci and Kyle pointed out
that Amy had not identified any documents in her initial disclosures; she did not seek
leave of court to reopen discovery; there was no showing of good cause to justify a delay
of fourteen months to produce the records; and had Amy timely disclosed her intention to
use medical records, they would have retained an expert who is qualified to render
opinions regarding medical records.
The hearing on the motion for summary judgment was held on July 8.4 In a
response to the objections and motion to strike evidence filed on July 11, Amy argued:
(1) the motion to strike was untimely because it was filed less than three days before the
hearing; (2) the trial court was permitted to suspend the discovery deadline under the
Thirty-Eighth COVID-19 emergency orders such that the production of the medical
records was timely when the records were served on June 7, 2022; and (3) there was no
surprise because Franci and Kyle possessed the records a month and a half prior to the
hearing on the summary judgment.
Texas Rule of Civil Procedure 166a, which establishes the procedure for summary
judgment proceedings, does not impose a deadline by which a movant must file its reply,
including objections, to a nonmovant’s response. See TEX. R. CIV. P. 166a(c); Martin v.
Estates of Russell Creek Homeowners Ass’n, 251 S.W.3d 899, 903 n.2 (Tex. App.—
Dallas 2008, no pet.); Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex. App.—Fort Worth
4 The motion for summary judgment was originally set for hearing on May 27, 2022, but the presiding judge recused himself nine days before the hearing.
5 2004, pet. denied). As such, Franci’s and Kyle’s objections were timely. Moreover, while
Amy recognizes the authority of the trial court to modify deadlines under the COVID-19
emergency orders, she did not file a motion to modify or suspend any deadlines allowed
under the emergency orders. See Ramos v. Veracruz Foods, LLC, No. 02-22-00116-CV,
2022 Tex. App. LEXIS 9545, at *13 (Tex. App.—Fort Worth Dec. 29, 2022, no pet.) (mem.
op.) (trial courts are permitted to extend deadlines under an emergency order, but there
is no requirement to do so). Finally, Amy cited no reason that she could not have obtained
the medical records during the nine-month discovery period. The trial court could have
concluded that Amy had been afforded adequate time to conduct formal discovery and
that her last-minute production of previously undisclosed medical records posed an unfair
surprise to Franci and Kyle, who would be unable to respond with a medical expert at this
late juncture.
We find no abused discretion in striking the medical records that were not identified
or produced until four months after the close of discovery. See TEX. R. CIV. P. 193.6;
Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 658 (Tex. App.—Dallas 2008, no
pet.). Moreover, Amy does not argue that the order granting summary judgment turned
on the particular evidence admitted or excluded. See TEX. R. APP. P. 44.1(a); Main v.
Royall, 348 S.W.3d 381, 388 (Tex. App.—Dallas 2011, no pet.). We overrule Amy’s first
issue.5
5 In her appellate brief, Amy contends that Rule 194.2 does not require her to disclose the medical records. The record does not reflect that Amy made this argument to the trial court. Therefore, it is not preserved. See TEX. R. APP. P. 33.1(a)(1); Cmty. Initiatives, Inc. v. Chase Bank, 153 S.W.3d 270, 280 (Tex. App.—El Paso 2004, no pet.).
6 Summary Judgment Standard of Review
We review a trial court’s ruling on a summary judgment motion under a de novo
standard of review. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
In conducting the review, we take as true all evidence favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts in favor of the nonmovant.
Id. To prevail on a traditional motion for summary judgment, the moving party must prove
that “there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law on the issues expressly set out in the motion.” TEX. R. CIV.
P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
A no-evidence summary judgment is essentially a directed verdict granted before
trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750−51 (Tex. 2003). A no-evidence summary judgment will
be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court
is barred by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla,
or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 751. We
may not consider any summary judgment evidence that was struck by the trial court. See
U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 215 (Tex. App.—San Antonio 2012, pet.
denied).
7 Issue Two: Testamentary Capacity
In her second issue, Amy challenges whether traditional summary judgment was
proper on the issue of testamentary capacity.6 She contends that she produced more
than a scintilla of probative evidence to raise a genuine issue of material fact as to whether
Frances lacked testamentary capacity to execute the will.
Before a will is admitted to probate, the will’s proponent bears the burden of
establishing that it was properly executed and that the testator had testamentary capacity
at the time of execution. See Schindler v. Schindler, 119 S.W.3d 923, 931 (Tex. App.—
Dallas 2003, pet. denied); Guthrie v. Suiter, 934 S.W.2d 820, 829 (Tex. App.—Houston
[1st Dist.] 1996, no writ). The proponent of the will may make a prima facie case on these
issues by introducing a self-proving will into evidence. See TEX. EST. CODE ANN.
§§ 251.101(1) (providing that self-proved will is will with attached or annexed self-proving
affidavit subscribed and sworn to by testator and witnesses); .104 (setting out
requirements for self-proving affidavit); In re Estate of Danford, 550 S.W.3d 275, 281
(Tex. App.—Houston [14th Dist.] 2018, no pet.); In re Estate of Arrington, 365 S.W.3d
463, 467 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“A self-proved will is prima facie
evidence that the will was properly executed.”). The burden of producing evidence
negating testamentary capacity then shifts to the will’s opponent, although the burden of
6 In this case, the trial court granted Franci’s and Kyle’s traditional motion for summary judgment
on testamentary capacity, and a no-evidence motion for summary judgment on undue influence and the will’s in terrorem clause. Amy does not raise any issue on appeal regarding her claim of undue influence. As such, Amy has waived any error in the summary judgment as to undue influence. See In the Estate of Coleman, 360 S.W.3d 606, 611–12 (Tex. App.—El Paso 2011, no pet.).
8 persuasion always remains with the proponent. Bracewell v. Bracewell, 20 S.W.3d 14,
26 (Tex. App—Houston [14th Dist.] 2000, no pet.); Guthrie, 934 S.W.2d at 829.
In their traditional motion for summary judgment, Franci and Kyle alleged that, after
Joseph’s death intestate in 2010, Frances and her children owned undivided interests in
the couple’s real estate. As a part of her estate planning, Frances wanted to ensure that
her children owned “more or less equal shares of land.” In order to effectuate her estate
planning, she hired attorney Michelle Lehmkuhl to draft her will, and it was completed in
January of 2020. Frances executed the will on March 30, 2020. In her will, Frances
devised a ninety-two-acre tract of land to Amy, but that devise is conditioned on Amy
conveying her undivided interest in a separate eighty-three-acre tract to Joel. Franci and
Kyle further allege as to testamentary capacity that Amy was not present when Frances
executed her will and “those who were present have stated that [Frances] was mentally
sound on that day.” As summary judgment proof, Franci and Kyle attached the will and
the self-proving affidavit7 to their motion along with an unsworn declaration from Kyle.
Franci and Kyle point to the affidavits of the two attesting witnesses who observed
Frances execute her will that the witnesses believed Frances to be “of sound mind” and
Frances told them “the instrument is her Last Will and Testament, and that she had
willingly made and executed it as her free act.”
In her response, Amy relies on her affidavit and avers that the following evidence
raises a fact question about Frances’s lack of testamentary capacity: during the last five
7 The will and affidavit in this case meet the statutory requirements for a self-proving will. See TEX. EST. CODE ANN. §§ 251.101 (defining a self-proved will), .104 (requirements for self-proving affidavit).
9 years of her life, Frances had become physically frail, with each year becoming
progressively worse; since 2016, Frances had multiple falls and a major fall in 2016
required hospitalization; in “early 2020” at Frances’s apartment, Frances was “sitting in
her recliner in the dark, unable to get up . . . [and] the two urinary pads in her chair were
drenched, her pants were soaked, and urine [was puddled] on the floor”; in October of
2020, Amy took Frances for a spa day and Frances was “extremely frail,” would easily
“space out,” and could not hold a conversation; in January of 2021, Frances was admitted
to the hospital for “altered mental state” and she could not remember how she fell or how
she arrived at the hospital.
Franci and Kyle met their initial summary judgment burden to establish a “prima
facie case” that Frances had testamentary capacity on March 30, 2020, by introducing
the self-proving will into evidence as summary judgment proof. See In re Estate of
Danford, 550 S.W.3d at 281; In re Estate of Coleman, 360 S.W.3d 606, 611−12 (Tex.
App.—El Paso 2011, no pet.). A “prima facie case” is a legal term of art that specifically
means the “minimum quantum of evidence necessary to support a rational inference that
the allegation of fact is true.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). It refers to
“evidence sufficient as a matter of law to establish a given fact if it is not rebutted or
contradicted.” Id. Because the will was self-proved, the burden of production shifted to
Amy to produce some evidence to contradict or negate the existence of testamentary
capacity.
In this case, the will was signed on March 30, 2020. Amy presented no direct
evidence that Frances lacked testamentary capacity on March 30, 2020, or otherwise
controverted the evidence from the attesting witnesses that Frances was “of sound mind,” 10 executed the will as her “last will and testament,” and requested they witness the will. If
there is no direct evidence indicating that the testator lacked testamentary capacity on
the date of execution, “[e]vidence of incompetency at other times can be used to establish
incompetency on the day the will was executed . . . .” Croucher v. Croucher, 660 S.W.2d
55, 57 (Tex. 1983). Thus, the testator’s mental condition on the date of execution may
be inferred “from lay opinion testimony based upon the witnesses’ observations of [the]
testator’s conduct either prior or subsequent to the execution.” In re Estate of Graham,
69 S.W.3d 598, 606 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.). However,
evidence of incapacity at other times only has probative force if that evidence
demonstrates that the testator’s condition persists and has some probability of being the
same condition that existed at the time the will was made. Lee v. Lee, 424 S.W.2d 609,
611 (Tex. 1968). To successfully challenge testamentary capacity with circumstantial
evidence from time periods other than the day on which the will was executed, the will
contestant must establish (1) the evidence offered indicates a lack of testamentary
capacity; (2) the evidence is probative of the testator’s capacity (or lack thereof) on the
day the will was executed; and (3) the evidence provided is of a satisfactory and
convincing character. In re Estate of Graham, 69 S.W.3d at 606.
Here, Amy produced evidence limited to Frances’s physical condition in 2016 and
early 2020, before Frances executed her will, and October of 2020 and January of 2021,
seven and ten months after she executed her will. Amy’s evidence does not address
Frances’s mental state before she executed the will and does not indicate that Frances
suffered from a persistent condition that affected her competency at the time she
executed her will. See Cruz v. Prado, 239 S.W.2d 650, 651 (Tex. Civ. App.—San Antonio
11 1951, no writ) (evidence that testator was feeble, lost control of bowels, and had difficulty
in sustaining a conversation was insufficient evidence of lack of testamentary capacity).
Amy’s evidence failed to contradict Franci’s and Kyle’s evidence of testamentary
capacity and was insufficient to raise a genuine issue of material fact. Croucher, 660
S.W.2d at 57. We conclude that, on this record, Franci and Kyle conclusively established
entitlement to traditional summary judgment on the testamentary capacity issue.
Accordingly, we overrule issue two.
Issue Three: In Terrorem Clause
Frances’s will contained an in terrorem clause (also known as a no-contest clause)
that stated:
If any beneficiary or remainderman under this Will in any manner, directly or indirectly, contests or attacks this Will or any of its provisions, any share of interest in my estate or in the estate of the Trust established by this Will given to that contesting beneficiary or remainderman under this Will is revoked and shall be disposed of in the same manner provided herein as if that contesting beneficiary or remainderman had predeceased me without issue.
Franci and Kyle moved for summary judgment on their request for declaratory relief
seeking a determination that Amy violated the in terrorem clause by contesting the will
and was barred from recovering under the will. They contend they are entitled to
summary judgment as a matter of law on the grounds that Amy has no evidence that just
cause existed for bringing the action or that she maintained the action in good faith. In
her third issue, Amy contends that she produced more than a scintilla of probative
12 evidence to raise a genuine issue of material fact as to whether she met the statutory
exception to the in terrorem clause.
An in terrorem clause in a will typically makes the gift conditional on the beneficiary
not challenging or disputing the validity of the will. Di Portanova v. Monroe, 402 S.W.3d
711, 715 (Tex. App.—Houston [1st Dist.] 2012, no pet). In terrorem clauses allow the
intent of the testatrix to be given full effect and seek to avoid vexatious litigation among
family members. Lesikar v. Moon, 237 S.W.3d 361, 369−70 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied). We narrowly construe in terrorem clauses to avoid forfeiture.
Di Portanova, 402 S.W.3d at 716. A lawsuit challenging the testamentary capacity of the
testatrix is a type of contest that will result in forfeiture. See In re Estate of Hamill, 866
S.W.2d 339, 343 (Tex. App.—Amarillo 1993, no pet.). Under Texas law, in terrorem
clauses are enforceable unless the contestant shows that “just cause existed for bringing
the action and the action was brought and maintained in good faith.” TEX. EST. CODE
ANN. § 254.005. For good faith and just cause to be an issue, there must necessarily
have been a contest contrary to the provision of the forfeiture clause. See In re Estate of
Newbill, 781 S.W.2d 727, 730 (Tex. App.—Amarillo 1989, no writ.). Here, we conclude
that Amy’s suit is an attempt to set aside Frances’s will, which is sufficient to trigger the
will’s in terrorem clause. Ferguson v. Ferguson, 111 S.W.3d 589, 598−99 (Tex. App.—
Fort Worth 2003, pet. denied) (the determination of whether a forfeiture clause is
triggered, i.e., whether the contesting party’s actions fall within the terms of the forfeiture
clause, is a question of law). However, Franci and Kyle were not entitled to summary
judgment if Amy raised a genuine issue of material fact that she had just cause to bring
suit and brought suit in good faith.
13 “Just cause” and “good faith” are not defined by the Estates Code, and no Texas
case has defined these terms in the context of an in terrorem clause. However, the case
law has defined these terms in relation to an award of attorney’s fees in regard to the
probate of a will. See TEX. EST. CODE ANN. § 352.052(a) (awarding attorney’s fees from
the estate to a person designated as executor or administrator who defends or prosecutes
a proceeding to have the will admitted to probate and acts in “good faith and with just
cause”). In this context, “good faith” means an action prompted by honesty of intention
or a reasonable belief that the action was probably correct. In re Estate of Kam, 484
S.W.3d 642, 654−55 (Tex. App.—El Paso 2016, pet. denied). The issue of good faith is
usually a question of fact, to be determined under all the circumstances of the case. Id.
at 654; Harkins v. Crews, 907 S.W.2d 51, 62 (Tex. App.—San Antonio 1995, writ denied).
A party acts “with just cause” when her actions are based on reasonable grounds and
there is a fair and honest reason for her actions. In re Estate of Kam, 484 S.W.3d at 654.
In her affidavit, Amy gives a history of the land owned by her family and her
parents’ expressed intentions that she and her siblings receive equal portions in their
estates. Her father Joseph died before he completed any transfer of his property. After
his death, each sibling received a parcel of land, but Amy’s parcel was located closer to
Franci’s home, “while [her] siblings’ land was miles away from the home, and [Amy’s]
parcel was larger than [her] siblings.” Further, because Joseph died intestate, Amy and
her siblings received undivided interests in their grandmother’s land. Amy and her
siblings could not agree how to divide their grandmother’s land. On numerous occasions,
Franci requested Amy to deed her interest in her grandmother’s land to her brother Joel,
but Amy refused. Another time, Franci told Amy that Frances was going to donate all the
14 land to the local church if Amy did not sign over her rights to her grandmother’s land. A
provision in Frances’s will devises a ninety-two-acre tract of land to Amy, but the devise
is conditioned on Amy conveying her undivided interest in her grandmother’s land (eighty-
three acres) to her brother Joel in order to obtain any portion of Frances’s estate. This
conditional interest in Frances’s will was surprising to Amy because that was not the plan
her parents had discussed “with all of us many times” and the provision was the same
provision Franci insisted Amy sign prior to Frances creating her will. The will also refers
to Amy by her former married name, “Kaase,” even though she has not used that name
in more than ten years. Amy’s affidavit also addresses Frances’s declining physical and
mental health from 2016 until her death in 2021: Frances was hospitalized for multiple
falls; she became increasingly frail; she was unable to hold a conversation; and shortly
before her death she was admitted to the hospital “for altered mental state,” and she could
not remember how she fell or how she arrived at the hospital.
In determining whether a fact issue precludes summary judgment, “we take as true
all evidence favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.” See Valence Operating Co., 164 S.W.3d
at 661. Taking Amy’s evidence as true, there is sufficient evidence from which a
reasonable and fair-minded person could believe Amy had a reasonable belief that
Frances lacked testamentary capacity, and that the will contest was brought and
maintained on reasonable grounds. As such, Amy has raised more than a scintilla of
probative evidence to raise a genuine issue of material fact as to whether she met the
statutory exception to the in terrorem clause. See Lippert v. Eldridge, No. 03-15-00643-
CV, 2016 Tex. App. LEXIS 11086 at *11 (Tex. App.—Austin Oct. 12, 2016, no pet.)
15 (issues of ordinary care, good faith, and reasonable belief are generally fact questions to
be resolved by the factfinder and not on summary judgment unless they are conclusively
established). The evidence is not conclusive here. Even though a factfinder may
ultimately find that Amy acted in bad faith or failed to prosecute her suit with just cause,
it is the factfinder’s responsibility to assess credibility and weigh the evidence. Perdue v.
Patten Corp., 142 S.W.3d 596, 606 (Tex. App.—Austin 2004, no pet.). Accordingly, we
conclude the trial court erred in granting the declaratory relief and attorney’s fees. We
sustain Amy’s third issue and remand the determination of the declaratory judgment
action to the trial court.
CONCLUSION
We overrule Amy’s first two issues and affirm the trial court’s judgment admitting
the will to probate. We sustain Amy’s third issue and reverse the trial court’s judgment
awarding declaratory relief and attorney’s fees and remand for further proceedings.
Judy C. Parker Justice