Opinion issued August 1, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00920-CV ——————————— IN THE ESTATE OF J. HUGH WHEATFALL, Deceased
On Appeal from the County Court at Law Grimes County, Texas Trial Court Case No. 8866A
MEMORANDUM OPINION
Appellant, Isaiah Wheatfall, challenges the trial court’s order dismissing his
contest to the will of J. Hugh Wheatfall, deceased (“decedent”). In two issues,
Wheatfall contends that the trial court erred in dismissing his will contest.
We dismiss the appeal for lack of jurisdiction. Background
On February 28, 2019, Wheatfall filed an application for letters of
administration of the decedent’s estate. He alleged that the decedent was his father,
who had died “on or about October 9, 2018, in Grimes County, Texas at the age of
94,” “without leaving a valid will.” Wheatfall also alleged that the decedent’s wife
had “preceded him in death,” and Wheatfall was the decedent’s sole surviving heir.
Wheatfall stated that he was “not disqualified by law to act as [a]dministrator.” And
Wheatfall requested that the trial court appoint an attorney ad litem “to locate any
unknown heirs” of the decedent.
On March 5, 2019, Theresa DeBose filed an application to admit to probate a
March 24, 2009 will (the “2009 will”) allegedly executed by the decedent. DeBose
identified herself as the decedent’s granddaughter and “an individual interested in”
the estate. She alleged that the 2009 will was “valid” and was never revoked, but
the original will had not been located. She attached a copy of the 2009 will to her
application.
DeBose further alleged that in the 2009 will, the decedent named his daughter,
Evelyn DeBose, to serve as independent executrix, but Evelyn had predeceased the
decedent and thus was unable to serve. The will “then named” Debose and the
2 decedent’s two grandsons to serve as “[c]o-independent [e]xecutors.”1 DeBose
requested that the 2009 will be admitted to probate and that she be issued letters
testamentary.
After DeBose filed her application for admission of the 2009 will to probate,
she became aware of Wheatfall’s application for letters of administration. The trial
court consolidated the applications into one proceeding and held an evidentiary
hearing on the applications.
The appellate record does not include a reporter’s record but in DeBose’s June
21, 2019 “[p]ost [h]earing [b]rief” supporting admission of the 2009 will to probate,
she indicated that earlier that month, the trial court had held a hearing in which it
heard testimony from a subscribing witness to the 2009 will as well as an attorney
from the firm that assisted the decedent in preparing the will. DeBose also noted in
her brief that Wheatfall had appeared at the hearing, and she rebutted the arguments
made by Wheatfall in his application for “appointment as dependent administrator”
of the estate.
On September 5, 2019, before the trial court ruled on the competing
applications, Wheatfall filed a “Contest to the Application for Probate of a Will not
Produced in Court” (the “September 5, 2019 filing”). He alleged that “[a] purported
1 DeBose secured affidavits from the decedent’s grandsons in which they renounced their right to letters testamentary. See TEX. EST. CODE ANN. § 304.002.
3 will was filed for probate on August 25, 2002” [sic] which, he “believe[d],” was
“invalid because it was not properly executed,” “the [d]ecedent was not of sound
mind at the time [it] was executed,” and the will “was made and executed under
undue influence.”
On September 16, 2019, the trial court signed an order admitting the 2009 will
to probate and issuing letters testamentary to DeBose. In the order, the trial court
found that the decedent executed the 2009 will “with the formalities and solemnities
and under the circumstances required by law to make it a valid [w]ill” and had not
revoked the will; that “[a]ll of the necessary proof required for the probate of the
[w]ill copy ha[d] been made”; and that “[t]he [w]ill copy [wa]s entitled to probate.”
The trial court also overruled “[a]ll objections to the probate of the [w]ill asserted
through September 4, 2019.” And it ordered that “upon the return of an [i]nventory,
[a]ppraisement & [l]ist of [c]laims of said [e]state or [a]ffidavit in [l]ieu of
[i]nventory, and the payment of [court costs],” the estate would “be dropped from
the Court’s active docket.”2 Further, the trial court denied Wheatfall’s application
for letters of administration, his application for determination of heirship, and his
motion for appointment of attorney ad litem.
2 DeBose filed her affidavit in lieu of inventory, appraisement, and list of claims on April 23, 2021.
4 On March 5, 2021, Wheatfall filed a request for a docket scheduling order.
The trial court held a status conference on March 24, 2022.
On April 1, 2022, DeBose filed a “[b]rief [r]egarding the [p]urported [w]ill
[c]ontest,” in which she asserted that the trial court’s September 16, 2019 order
admitting the decedent’s will to probate was a “final order which resolved the
allegations made by [Wheatfall]” and Wheatfall had failed to timely challenge the
order by a motion for new trial or appeal.
In his response, Wheatfall argued that the trial court’s order admitting the
2009 will to probate “did not resolve” the issues he raised in his September 5, 2019
filing because, according to Wheatfall, he had “raised new issues regarding the
validity” of the 2009 will in the September 5, 2019 filing. Wheatfall noted that in
its order, the trial court overruled only those objections “asserted through September
4, 2019,” which meant that the trial court’s order did not address the objections that
he raised in his September 5, 2019 filing. And because the trial court’s order did not
dispose of the issues that he raised in that filing, Wheatfall argued, it was not a final
order.
On November 3, 2022, the trial court signed an order that granted DeBose’s
objection to setting a hearing on Wheatfall’s September 5, 2019 filing and ordered
that the contest was “hereby dismissed.” Wheatfall filed his notice of appeal on
December 2, 2022.
5 Appellate Jurisdiction
As an initial matter, DeBose, in her appellee’s brief, argues that we lack
jurisdiction over Wheatfall’s appeal of the trial court’s ruling on his will contest
because the trial court’s September 16, 2019 order admitting the 2019 will to probate
was a final, appealable order that disposed of all parties and issues when it was
signed and Wheatfall’s December 2, 2022 notice of appeal was, thus, untimely. See
TEX. R. APP. P. 25.1, 26.1.
“[C]ourts always have jurisdiction to determine their own jurisdiction,” and
“[a]ppellate jurisdiction is never presumed.” Heckman v. Williamson Cnty., 369
S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted); Florance v. State,
352 S.W.3d 867, 871 (Tex. App.—Dallas 2011, no pet.); see also Royal Indep. Sch.
Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (jurisdiction fundamental in nature and cannot be ignored). If we lack
jurisdiction over an appeal, it must be dismissed.
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Opinion issued August 1, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00920-CV ——————————— IN THE ESTATE OF J. HUGH WHEATFALL, Deceased
On Appeal from the County Court at Law Grimes County, Texas Trial Court Case No. 8866A
MEMORANDUM OPINION
Appellant, Isaiah Wheatfall, challenges the trial court’s order dismissing his
contest to the will of J. Hugh Wheatfall, deceased (“decedent”). In two issues,
Wheatfall contends that the trial court erred in dismissing his will contest.
We dismiss the appeal for lack of jurisdiction. Background
On February 28, 2019, Wheatfall filed an application for letters of
administration of the decedent’s estate. He alleged that the decedent was his father,
who had died “on or about October 9, 2018, in Grimes County, Texas at the age of
94,” “without leaving a valid will.” Wheatfall also alleged that the decedent’s wife
had “preceded him in death,” and Wheatfall was the decedent’s sole surviving heir.
Wheatfall stated that he was “not disqualified by law to act as [a]dministrator.” And
Wheatfall requested that the trial court appoint an attorney ad litem “to locate any
unknown heirs” of the decedent.
On March 5, 2019, Theresa DeBose filed an application to admit to probate a
March 24, 2009 will (the “2009 will”) allegedly executed by the decedent. DeBose
identified herself as the decedent’s granddaughter and “an individual interested in”
the estate. She alleged that the 2009 will was “valid” and was never revoked, but
the original will had not been located. She attached a copy of the 2009 will to her
application.
DeBose further alleged that in the 2009 will, the decedent named his daughter,
Evelyn DeBose, to serve as independent executrix, but Evelyn had predeceased the
decedent and thus was unable to serve. The will “then named” Debose and the
2 decedent’s two grandsons to serve as “[c]o-independent [e]xecutors.”1 DeBose
requested that the 2009 will be admitted to probate and that she be issued letters
testamentary.
After DeBose filed her application for admission of the 2009 will to probate,
she became aware of Wheatfall’s application for letters of administration. The trial
court consolidated the applications into one proceeding and held an evidentiary
hearing on the applications.
The appellate record does not include a reporter’s record but in DeBose’s June
21, 2019 “[p]ost [h]earing [b]rief” supporting admission of the 2009 will to probate,
she indicated that earlier that month, the trial court had held a hearing in which it
heard testimony from a subscribing witness to the 2009 will as well as an attorney
from the firm that assisted the decedent in preparing the will. DeBose also noted in
her brief that Wheatfall had appeared at the hearing, and she rebutted the arguments
made by Wheatfall in his application for “appointment as dependent administrator”
of the estate.
On September 5, 2019, before the trial court ruled on the competing
applications, Wheatfall filed a “Contest to the Application for Probate of a Will not
Produced in Court” (the “September 5, 2019 filing”). He alleged that “[a] purported
1 DeBose secured affidavits from the decedent’s grandsons in which they renounced their right to letters testamentary. See TEX. EST. CODE ANN. § 304.002.
3 will was filed for probate on August 25, 2002” [sic] which, he “believe[d],” was
“invalid because it was not properly executed,” “the [d]ecedent was not of sound
mind at the time [it] was executed,” and the will “was made and executed under
undue influence.”
On September 16, 2019, the trial court signed an order admitting the 2009 will
to probate and issuing letters testamentary to DeBose. In the order, the trial court
found that the decedent executed the 2009 will “with the formalities and solemnities
and under the circumstances required by law to make it a valid [w]ill” and had not
revoked the will; that “[a]ll of the necessary proof required for the probate of the
[w]ill copy ha[d] been made”; and that “[t]he [w]ill copy [wa]s entitled to probate.”
The trial court also overruled “[a]ll objections to the probate of the [w]ill asserted
through September 4, 2019.” And it ordered that “upon the return of an [i]nventory,
[a]ppraisement & [l]ist of [c]laims of said [e]state or [a]ffidavit in [l]ieu of
[i]nventory, and the payment of [court costs],” the estate would “be dropped from
the Court’s active docket.”2 Further, the trial court denied Wheatfall’s application
for letters of administration, his application for determination of heirship, and his
motion for appointment of attorney ad litem.
2 DeBose filed her affidavit in lieu of inventory, appraisement, and list of claims on April 23, 2021.
4 On March 5, 2021, Wheatfall filed a request for a docket scheduling order.
The trial court held a status conference on March 24, 2022.
On April 1, 2022, DeBose filed a “[b]rief [r]egarding the [p]urported [w]ill
[c]ontest,” in which she asserted that the trial court’s September 16, 2019 order
admitting the decedent’s will to probate was a “final order which resolved the
allegations made by [Wheatfall]” and Wheatfall had failed to timely challenge the
order by a motion for new trial or appeal.
In his response, Wheatfall argued that the trial court’s order admitting the
2009 will to probate “did not resolve” the issues he raised in his September 5, 2019
filing because, according to Wheatfall, he had “raised new issues regarding the
validity” of the 2009 will in the September 5, 2019 filing. Wheatfall noted that in
its order, the trial court overruled only those objections “asserted through September
4, 2019,” which meant that the trial court’s order did not address the objections that
he raised in his September 5, 2019 filing. And because the trial court’s order did not
dispose of the issues that he raised in that filing, Wheatfall argued, it was not a final
order.
On November 3, 2022, the trial court signed an order that granted DeBose’s
objection to setting a hearing on Wheatfall’s September 5, 2019 filing and ordered
that the contest was “hereby dismissed.” Wheatfall filed his notice of appeal on
December 2, 2022.
5 Appellate Jurisdiction
As an initial matter, DeBose, in her appellee’s brief, argues that we lack
jurisdiction over Wheatfall’s appeal of the trial court’s ruling on his will contest
because the trial court’s September 16, 2019 order admitting the 2019 will to probate
was a final, appealable order that disposed of all parties and issues when it was
signed and Wheatfall’s December 2, 2022 notice of appeal was, thus, untimely. See
TEX. R. APP. P. 25.1, 26.1.
“[C]ourts always have jurisdiction to determine their own jurisdiction,” and
“[a]ppellate jurisdiction is never presumed.” Heckman v. Williamson Cnty., 369
S.W.3d 137, 146 n.14 (Tex. 2012) (internal quotations omitted); Florance v. State,
352 S.W.3d 867, 871 (Tex. App.—Dallas 2011, no pet.); see also Royal Indep. Sch.
Dist. v. Ragsdale, 273 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (jurisdiction fundamental in nature and cannot be ignored). If we lack
jurisdiction over an appeal, it must be dismissed. See Ragsdale, 273 S.W.3d at 763;
US Anesthesia Partners v. Robinson, No. 01-21-00572-CV, 2022 WL 4099835, at
*4 (Tex. App.—Houston [1st Dist.] Sept. 8, 2022, pet. denied) (mem. op.).
Generally, parties may appeal only from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 & n.12 (Tex. 2001). However, appeals from
probate courts involve an exception to the final-judgment rule because multiple final
judgments may be rendered on discrete issues before an entire probate proceeding is
6 concluded. See Trevino v. Reese, No. 01-10-00717-CV, 2011 WL 2436523, at *2
(Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.); Young v. First
Cmty. Bank, N.A., 222 S.W.3d 454, 456 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
Two categories of probate court orders are considered final for purposes of
appeal even when they do not dispose of all pending parties and claims. See De
Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006); Crowson v. Wakeham, 897
S.W.2d 779, 781–83 (Tex. 1995); SJ Med. Ctr., L.L.C. v. Estahbanati, 418 S.W.3d
867, 870–71 (Tex. App.—Houston [14th Dist.] 2013, no pet.). First, if a statute
expressly declares that the particular phase of the probate proceedings is final and
appealable, that statute controls. Est. of Brazda, 582 S.W.3d 717, 723 (Tex. App.—
Houston [1st Dist.] 2019, no pet.); see also De Ayala, 193 S.W.3d at 578. Second,
in the absence of a statute, the order is final if it disposes of all parties and all issues
in “the phase of the proceeding for which it was brought.” De Ayala, 193 S.W.3d at
578.
Here, there is no express statute that controls finality. Thus, we consider
whether the trial court’s September 16, 2019 order admitting the 2009 will to probate
completely disposed of that phase of the proceeding.
In asserting that the September 5, 2019 filing was a will contest that initiated
a new phase of the proceeding, Wheatfall relies on Texas Estates Code section 55.01,
7 which provides that any “person interested in an estate may, at any time before the
court decides an issue in a [probate] proceeding, file written opposition regarding
the issue.” TEX. EST. CODE ANN. § 55.001. We find pertinent to the proceeding
Texas Estates Code section 256.101, which provides:
(a) 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; or
(B) if only one application is for the probate of a will, whether the will should be admitted to probate or whether the decedent died intestate.
TEX. EST. CODE ANN. § 256.101(a). This provision requires that a challenge to the
validity of one or more wills be adjudicated in a single proceeding. See Bennett v.
Seals, No. 01-08-00079-CV, 2009 WL 276769, at *5 (Tex. App.—Houston [1st
Dist.] Feb. 5, 2009, pet. denied) (mem. op.); In re Est. of Gomez, 161 S.W.3d 615,
616 (Tex. App.—San Antonio 2005, no pet.).
Here, the record shows that the trial court consolidated Wheatfall’s
application for letters of administration, in which Wheatfall alleged that the decedent
8 died intestate, with DeBose’s application to admit the 2009 will to probate. Once
joined in the same proceeding, these competing applications established a contest
about the validity of the 2009 will. See TEX. EST. CODE ANN. § 256.101(a). Thus,
although Wheatfall’s September 5, 2019 filing may be a “written opposition,”3 it
was not a new “contest.” A will contest is a direct attack on the order admitting a
will to probate. Stoll v. Henderson, 285 S.W.3d 99, 105 (Tex. App.—Houston [1st
Dist.] 2009, no pet.); In re Est. of Blevins, 202 S.W.3d 326, 328 (Tex. App.—Tyler
2006, no pet.); In re Est. of Davidson, 153 S.W.3d 301, 304 (Tex. App.—Beaumont
2004, pet. denied). Wheatfall filed his opposition before the trial court signed its
order admitting the 2009 will to probate.
Wheatfall also asserts that the September 16, 2019 order admitting the 2009
will to probate was not final because in stating that it was not ruling on any
objections to the probate of the will asserted after September 4, 2019, the trial court
left the September 5, 2019 filing unadjudicated. We disagree.
In his September 5, 2019 filing, Wheatfall argued that the 2009 will was
“invalid because it was not properly executed,” “the [d]ecedent was not of sound
mind at the time [it] was executed,” and the will “was made and executed under
undue influence.” In its order admitting the 2009 will to probate, the trial court
expressly found that the decedent executed the 2009 will “with the formalities and
3 See TEX. EST. CODE ANN. § 55.001.
9 solemnities and under the circumstances required by law to make it a valid [w]ill.”
This express finding encompasses an implied finding that the decedent had
testamentary capacity at the time the will was executed. See Est. of Danford, 550
S.W.3d 275, 281 (Tex. App.—Houston [14th Dist.] 2018, no pet.). A testator has
testamentary capacity when he possesses sufficient mental ability at the time of
execution of the will to: (1) understand the effect of making the will and the general
nature and extent of his property, (2) know the testator’s next of kin and the natural
objects of his bounty, and (3) have sufficient memory to assimilate the elements of
executing a will, to hold those elements long enough to perceive their obvious
relation to each other, and to form a reasonable judgment as to them. Id.
In finding that the 2009 will was valid, the trial court also impliedly rejected
any claim of undue influence. A claim of undue influence is a ground for
invalidating a will “distinct from a challenge that the testator lacked testamentary
capacity.” Id. at 285; see also Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.
1963). “[U]ndue influence implies the existence of a testamentary capacity
subjected to and controlled by a dominant influence or power.” Rothermel, 369
S.W.2d at 922; see also Quiroga v. Manelli, No. 01-09-00315-CV, 2011 WL
944399, at *4 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (mem. op.) (influence
is not undue unless free agency of testator was destroyed and will produced
expressed wishes of person who exerted influence). Further, the trial court rejected
10 Wheatfall’s claim that the decedent died without a valid will by denying his
application for letters of administration, his application for determination of heirship,
and his motion for appointment of an attorney ad litem. The language of the trial
court’s September 16, 2019 order admitting the 2009 will to probate thus shows that
the trial court disposed of Wheatfall’s contest to the validity of the 2009 will,
including the issues he raised in his September 5, 2019 filing.
Because the September 16, 2019 order admitting the 2009 will to probate
disposed of all parties and all issues in “the phase of the proceeding for which it was
brought” we conclude that it was a final, appealable judgment. See De Ayala, 193
S.W.3d at 578–79.
A party “seek[ing] to alter the trial court’s judgment or other appealable order”
must timely file a notice of appeal. TEX. R. APP. P. 25.1(c). Generally, if a party
fails to timely file a notice of appeal, we have no jurisdiction to address the merits
of the party’s appeal. See TEX. R. APP. P. 25.1(b); In re K. L. L., 506 S.W.3d 558,
560 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (without timely notice of appeal,
appellate court lacks jurisdiction over appeal); Brashear v. Victoria Gardens of
McKinney, L.L.C., 302 S.W.3d 542, 545–46 (Tex. App.—Dallas 2009, no pet.)
(timely filing of notice of appeal is jurisdictional prerequisite).
A notice of appeal is usually due thirty days after a trial court’s judgment or
appealable order is signed. See TEX. R. APP. P. 26.1 (when no motion for new trial
11 filed, notice of appeal due thirty days after trial court signs judgment or appealable
order). Here, Wheatfall’s notice of appeal was due thirty days after the trial court
signed the September 16, 2019 order—by October 16, 2019. Because Wheatfall
filed his notice of appeal on December 2, 2022, his notice of appeal was untimely.
Accordingly, we hold that we lack jurisdiction over his appeal.
Conclusion
We dismiss the appeal for lack of jurisdiction.
Julie Countiss Justice
Panel consists of Justices Goodman, Countiss, and Farris.
Farris, J., dissenting.