TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00416-CV NO. 03-20-00425-CV NO. 03-20-00583-CV NO. 03-21-00114-CV
McKenna Lynn Kuhr, Appellant
v.
Ronald Smith, Appellee
FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NOS. C-1-PB-16-000575 & C-1-PB-19-001840 THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING
MEMORANDUM OPINION
In this Court’s cause numbers 03-20-00416-CV, 03-20-00425-CV, and
03-20-00583-CV, which have been consolidated for briefing and review, McKenna Lynn Kuhr
challenges the probate court’s orders granting Ronald Smith’s traditional motions for summary
judgment on bill of review and presenting will for probate and its order admitting the will
of Terry Smith (Decedent) to probate as a muniment of title only. In cause number
03-21-00114-CV, Kuhr appeals from the probate court’s order on her motion to suspend
enforcement of the order admitting the will to probate and to set appellate security.
In its order granting summary judgment on bill of review, the probate court
vacated portions of its order closing administration of Decedent’s estate. In the estate
proceeding, the probate court’s summary judgment ordered that the will was timely presented, and after a bench trial, the probate court ordered the will to be admitted to probate as a muniment
of title only.
Because we conclude that we do not have jurisdiction over this Court’s cause
number 03-21-00114-CV, we dismiss that appeal. Because we conclude that the probate court
did not err in concluding that the will was timely presented for probate and that Ronald Smith
(Smith) was not in default, we conclude that the probate court did not err in admitting the will to
probate as a muniment of title only and affirm the challenged orders in the consolidated appeals. 1
BACKGROUND 2
On July 20, 2014, Decedent died leaving behind her spouse Smith and her only
child Kuhr from another relationship. Decedent’s October 27, 2005 will (the will) designated
Smith as the sole beneficiary. 3
In early 2016, the Bank of New York Mellon (the Bank), a secured creditor and
lienholder on the home owned by Decedent and Smith, sought to foreclose on the home and filed
an application for letters of administration and to declare heirs, initiating the probate court’s
cause number C-1-PB-16-000575 (the estate proceeding). In May, the court-appointed attorney
ad litem for the estate filed an objection to a scheduled hearing with a copy of the will. In the
objection, the attorney ad litem states:
1 We granted a partial temporary stay pending our review of the merits of Kuhr’s pending Rule 24.4 motions. See Tex. R. App. 24.4. Given our disposition of the appeals, we deny the pending motions and lift the temporary stay. 2The facts recited are taken from the summary judgment evidence in the underlying proceedings and the evidence presented during the bench trial in the estate proceeding. 3 Kuhr concedes that Smith is the sole beneficiary under the will’s terms. In her appellant’s brief, she states: “If [Decedent’s] will were to be admitted to probate, the will gives all of [Decedent’s] real and personal property to [Smith].” 2 [She] TODAY was provided a copy of a will for [Decedent] (SEE EXHIBIT A) identifying her heirs and also listing her family as her choice for her estate representatives. Specifically she gave her property to her husband 100%, and appointed him as the Estate representative. . . .
Based on this new information and that the Attorney for the Bank/Applicant is in possession of the original will, the Ad Litem believes this proceeding and application pending MUST be amended. There is a will, and the decedent did identify her heirs and whom should receive her estate. It would be inappropriate to ignore this will, and proceed to appoint the current Bank/Applicant who desires to foreclose on the property and be in charge of the Estate, until and unless the heirs under the will waive that right, and also if the proceeding remains a heirship proceeding they also are entitled to seek appointment.
. . . It appears that the family members, especially the Decedent’s husband, as surviving spouse is confused over the legal probate process.
About the same time that the attorney ad litem filed her objection, the Bank
amended its application, sought to probate the will, and attached a copy of the will to its
application. At that point, the Bank believed that it had the original of the will. In July, after
learning that it did not possess the original, the Bank filed a second amended application for
letters of dependent administration, representing that to the best of its “knowledge, Decedent
may have left a valid Last Will and Testament dated October 27, 2005,” that a copy of the will
was filed with the court in May 2016, that the Bank was unaware of the whereabouts of the
original or if it still existed, and that the “Administrator will either Probate the Will or file an
Application to Determine Heirship.”
Following a hearing in August, the probate court found that administration of the
estate was needed, granted letters of dependent administration, and ordered the parties to
schedule a hearing to determine Decedent’s heirs or to probate the will:
It is further ORDERED that a determination of heirship hearing or a Will probate hearing shall be scheduled by the parties for a date not later than November 18, 2016, and that, if a determination of heirship is being sought, the attorney for the
3 Dependent Administrator shall submit an heirship setting request form to the Court no later than November 1, 2016 and shall have completed before that time all requirements to be able to completely fill out the request.
It is further ORDERED that the Dependent Administrator shall file an application for determination of heirship or an application to probate the Decedent’s Will and shall complete all necessary documents in sufficient time prior to the hearing so that the Court can hear the application by the date stated above.
A hearing on heirship or to probate the will, however, had not occurred when in January 2018,
the probate court signed an order that approved the account for final settlement, discharged the
dependent administrator, and closed the administration of the estate. In the January 2018 order,
the probate court decreed that there was “no property remaining in the Estate.” The Bank had
completed the foreclosure of the home.
Decedent at the time of her death, however, owned assets besides the home,
including non-producing mineral interests and jewelry. 4 Smith signed leases concerning the
mineral interests with an oil and gas company (the company) after Decedent’s death, including
a lease in September 2016. The company made bonus payments to Smith in February and
March 2018 but notified Smith around August 2019 that the will had not been admitted to
probate during the estate proceeding and withheld further payments. In response, Smith filed a
petition for bill of review in September 2019, initiating the probate court’s cause number
C-1-PB-19-001840 (bill-of-review proceeding). Smith sought to revise and correct the probate
court’s January 2018 order in the estate proceeding “so that the mineral interest can be
probated.” See Tex. Est. Code § 55.251 (authorizing interested person within two years to file
bill of review to have order or judgment revised and corrected on showing of error in order or
judgment in probate proceeding). In October 2019, Smith filed the original of the will and an
4Smith testified at the bench trial in the estate proceeding that Decedent had jewelry that Kuhr possessed that was “probably worth $100,000.” 4 application to admit the will to probate as a muniment of title in the estate proceeding. See id.
§ 257.001 (authorizing court to admit will to probate as muniment of title if court is satisfied that
will should be admitted to probate and that testator’s estate does not owe unpaid debt other than
debt secured by lien on real estate or finds for another reason that there is no necessity for
administration of estate). And in January 2020, Smith filed an amended petition in the
bill-of-review proceeding, seeking to revise and correct the probate court’s January 2018 order
and to reopen the estate proceeding to allow Smith to attempt to probate the will as a muniment
of title.
Kuhr contested Smith’s application to probate the will in the estate proceeding
and his petition in the bill-of-review proceeding. In both proceedings, Smith filed traditional
motions for summary judgment, Kuhr filed responses, and the parties filed summary judgment
evidence. In July 2020, the probate court granted Smith’s motions in both proceedings. In its
summary judgment order in the bill-of-review proceeding, the probate court found that
undistributed property remained in the estate, concluded there was substantial error in its
January 2018 order “in that it states ‘there is no real property remaining in the estate’ and ‘there
is no property remaining in the Estate,’” granted Smith’s petition for bill of review, and vacated
its January 2018 order to the extent of its erroneous statements. In its summary judgment order
in the estate proceeding, the probate court determined as a matter of law that the will was
presented for probate on or before the fourth anniversary of Decedent’s date of death. See id.
§ 256.003(a) (generally requiring will to be presented for probate before fourth anniversary of
testator’s death). The evidence established that Decedent died in July 2014, that the Bank filed
an application to probate the will in May 2016, and that the Bank and the attorney ad litem filed
copies of the will in May 2016.
5 A bench trial in the estate proceeding occurred in September 2020 on Smith’s
application to admit the will to probate as a muniment of title. The witnesses included Smith, 5
who testified that:
• the Bank filed an application to probate the will in May 2016;
• Smith did not consult with an attorney about probating the will or Decedent’s estate before the administration of the estate closed in January 2018;
• Smith “believed” that the will had been probated during the estate proceeding 6;
• Decedent owned mineral interests and jewelry when she died;
• Smith negotiated leases on the mineral interests after she died and received two bonus payments in February and March 2018;
• in 2019, Smith became aware that the will had not been probated when he “got a phone call” from the company that “they realized that [the will] had never been probated” and they were withholding payments;
• Smith never intended to and did not ever abandon his efforts to probate the will and “everything was taken out of his hands when the independent [sic] administrator took over”;
• the original was the same will as the copy that was filed with the court in May 2016; and
• Smith “obviously” did not understand the probate process.
Smith further testified that Decedent’s estate did not owe unpaid debt other than debt secured by
liens on real estate and that there was no necessity to further administer the estate. On cross
examination, Smith admitted that he did not tell the administrator or the court about the mineral
5 Smith also called two other witnesses who offered evidence to support the validity of the will. 6 Smith testified, “I thought the will had been probated” and that he did not take steps to probate the will because he “thought it was being probated.” 6 interests before the administration of the estate was closed in January 2018 but explained that
“[t]here was nothing going on with those mineral rights.” He also denied that he was aware that
the estate closed without probating the will or that he was required to tender the original of the
will to the court or the administrator. He testified that “[t]hey didn’t ask for the original.”
Kuhr’s witnesses were the attorney who represented the Bank “to get [his] client’s
claim paid or foreclose on the house” and the dependent administrator. The attorney testified
that Smith provided a copy of the will, not the original, and that because they did not have the
original, the Bank proceeded with its request to have the dependent administrator appointed. At
the time the Bank filed the copy of the will, the attorney testified that the Bank thought that it
was the original. After the Bank determined that it did not have the original, the bank amended
its application and did not attempt to probate the will, but it continued to reference the will in its
application. The dependent administrator testified that he asked the court to close the estate
without conducting an heirship or probate matter because there were insufficient assets to satisfy
the mortgage company. Prior to the closing of the administration of the estate, he was unaware
that Decedent owned jewelry and mineral interests when she died but believed that the closing
“[left] open the opportunity for somebody else to come in and administer the estate if they
find assets.”
The exhibits included the original of the will, a deposition by written questions of
a “landman” with attached notes from alleged conversations with Smith in 2017, the May 2016
objection of the attorney ad litem in the estate proceeding, and an August 2016 letter from the
paralegal of the dependent administrator that was addressed to family members, including Smith
and Kuhr. The paralegal notified the family of the administrator’s appointment and asked for
information about a will and any assets owned by Decedent. The landman’s hand-written notes
7 state next to “7/11/2017” that “account of final settlement but no probate closure as to minerals”
and next to “7/13” that “called and alerted Mr. Smith of confusion.” On “contact” reports, the
landman handwrote next to the dates:
(i) “8/1,” that an attorney reviewed the foreclosure and estate proceedings and opined that the will “had not technically and properly been probated” and that the landman “called and explained to Mr. Smith that once the current case/cause closed (next couple of weeks) he needed to have [the will] properly probated”;
(ii) “9/7,” “Judge denied the bank’s probate”;
(iii) “12/26,” “w/i next few weeks probate is supposed to be finalized (he will show up in court for proceedings)”; and
(iv) “1/24/2018,” “Mr. Smith called to notify [him] that the probate for [Decedent] has been finalized in Travis County.”
Smith admitted that the landman talked to him around August 1, 2017, and testified
inconsistently about what the landman told him, but he consistently testified that he believed that
the will had been probated when the administration of the estate closed. 7
7 During cross examination, Smith testified:
Q. So what you’re saying is that on August 1st of 2017 that [the landman] did not call you and inform you that an attorney . . . had reviewed all the pleadings in this cause as to [Decedent’s] estate and that he was of the opinion that [the will] had not been properly probated?
A. No, I did get that telephone call and, yes, that is correct.
Q. Okay. And in addition to that he went on to tell you that if the administrator’s request to close the case and discharge him happened pursuant to the request in the motion the administrator filed, that you would have to go back yourself and probate [the will]? He told you that too, didn’t he?
A. I don’t recall. Don’t recall.
Q. Well, specifically I asked you in your—in your deposition, “Did he go on to explain that if the Court just granted the relief in Exhibit 4 [motion to close estate] that the case 8 The probate court took the matter under advisement, and in December 2020, the
probate court signed the order admitting the will to probate as a muniment of title only. See id.
§ 257.001; see also id. § 257.102 (describing authority of certain persons who are acting in
accordance with order admitting will to probate as muniment of title). The probate court also
entered findings of fact and conclusions of law. 8 These appeals followed.
In cause number 03-21-00114-CV, Kuhr appeals from the probate court’s order
that partially suspended enforcement of the probate court’s order admitting the will to probate
and setting appellate security (partial suspension order). Cause number 03-20-00416-CV is from
the probate court’s order granting Smith’s motion for summary judgment on presenting the will
for probate in the estate proceeding, cause number 03-20-00425-CV is from the probate court’s
order granting Smith’s summary judgment in the bill-of-review proceeding, and cause number
would close with no determination or—of the probate of the will?” And you answered that day, “Yes.” “And that you would need to do that?” And you said, “Yes, yes.” Is that still your truthful testimony?
A. Yes. I would say it is, yes.
Q. Okay. So you—you were aware before the Court entered the order closing the estate and dismissing the administrator that he was not asking to probate the will, and if that happened the—the estate was going to close with no probate?
A. No, I was not aware. Absolutely not.
Q. Well, you just admitted it a minute ago —
A. Well, I’m sorry, but I was not aware. Not aware. I thought—I thought that it had been probated, period.
Smith admitted that the company told him that the will had not been probated, but he testified that notification occurred after the estate was closed. 8 Kuhr also requested additional findings of fact and conclusions of law, but no additional findings or conclusions were filed. 9 03-20-00583-CV is from the bench trial and resulting order admitting Decedent’s will to probate
as a muniment of title only in the estate proceeding.
ANALYSIS
03-21-00114-CV
We begin with cause number 03-21-00114-CV because we lack jurisdiction over
this appeal. On March 15, 2021, the clerk of this Court advised Kuhr that it appeared that this
Court did not have jurisdiction over her appeal and requested a response. Smith also filed a
motion to dismiss the appeal because the partial suspension order was not final or appealable
and, thus, this Court lacked jurisdiction. Kuhr filed a response, but she has not demonstrated this
Court’s jurisdiction over this appeal. 9
The partial suspension order does not dispose of parties or claims and, by its
express terms, is only effective during the pendency of Kuhr’s appeals. Rule 24.4 provides a
procedural mechanism for appealing this type of order by filing a motion with the appellate court
in a pending appeal, but it does not provide an independent basis for appellate jurisdiction. See
Tex. R. App. P. 24.4 (authorizing review by motion filed in court of appeals with jurisdiction or
potential jurisdiction over appeal from judgment in case); Standiford v. CitiMortgage, Inc.,
No. 03-15-00542-CV, 2015 Tex. App. LEXIS 9152, at *1 (Tex. App.—Austin Aug. 28, 2015, no
9 In her notice of appeal, Kuhr also appeals “all other orders and rulings of the probate court” in the estate proceeding. She, however, does not identify the “other orders and rulings,” and her appeal in cause number 03-20-00583-CV is from the probate court’s order admitting the will to probate. See Tex. Est. Code § 32.001(c) (“A final order issued by a probate court is appealable to the court of appeals.”); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (explaining that appeal may only be taken from final judgment that disposes of all pending parties and claims in record and that only certain proceedings, like some probate and receivership proceedings, allow for multiple judgments on certain discrete issues); Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (adopting test for determining when phase of probate proceeding is final and appealable). 10 pet.) (mem. op.) (dismissing for want of jurisdiction direct appeal from order setting supersedeas
bond); Transcontinental Realty Inv’rs, Inc. v. Orix Capital Mkts. LLC, 470 S.W.3d 844, 848
(Tex. App.—Dallas 2015, no pet.) (observing that Rule 24.4 does not provide independent basis
for appellate jurisdiction); In re Bittinger, No. 14-10-00697-CV, 2010 Tex. App. LEXIS 6858, at
*1 (Tex. App.—Houston [14th Dist.] Aug. 23, 2010, orig. proceeding) (per curiam) (mem. op.)
(explaining that relator’s remedy was to file Rule 24.4 motion in pending appeal). Thus, we
grant Smith’s motion and dismiss this Court’s cause number 03-21-00114-CV for lack
of jurisdiction.
Consolidated Appeals
In the three consolidated appeals, Kuhr raises four issues. She contends that the
probate court erred when it: (i) concluded that the will had been presented for probate within
four years of Decedent’s death; (ii) admitted the will for probate when it did not require Smith to
prove that he was not in default in failing to probate the will as required by section 256.003(a) of
the Texas Estates Code; (iii) found that Smith was not in default in failing to probate the will;
and (iv) admitted Decedent’s will to probate as a muniment of title. Kuhr argues that because the
will was not timely presented for probate, Smith had to prove that he was not in default in failing
to probate the will and that he failed to do so.
Kuhr also expressly challenges the probate court’s findings of fact 5, 6, 7, 11, 12,
13, 19, 21, 22 and conclusions of law 24, 27, 28, 29, 33, 34, 35, 40, and 42, many of
which overlap:
11 Findings of Fact
***
5. Applicant’s petition for bill of review, including amendments thereto, and Applicant’s application to probate Decedent’s Will, including amendments thereto, constitute a continuation of the original proceedings filed by the Bank of New York Mellon and the dependent administrator of Decedent’s Estate in this Cause No.
6. On July 13, 2020, this Court granted Applicant’s (1) Traditional Motion for Summary Judgment on Bill of Review in Cause No. C-1-PB-19-001840, which vacated portions of the Court’s January 19, 2018, Order Approving Account for Final Settlement, Closing Estate, and Discharging Dependent Administrator in this Cause No. and (2) Traditional Motion for Summary Judgment on Presenting Will for Probate in this Cause No., which determined that Decedent’s Will was “presented for probate” on or before the fourth anniversary of Decedent’s date of death.
7. As a result of the summary judgment orders, the Court determined that Applicant was not required to prove that he was not in default in failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death. McKenna Lynn Kuhr (“Respondent”), however, alleged that Applicant was still required to prove that he was not in default in failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death.
11. Decedent died on July 20, 2014, and four years did not elapse between the date of Decedent’s death and the filing of the May 20, 2016, application to probate Decedent’s Will. Applicant’s applications to probate Decedent’s Will, including his Third Amended Application for Probate of Will as Muniment of Title, constitute a continuation of the original proceedings filed by the Bank of New York Mellon and the dependent administrator of Decedent’s Estate in this Cause No.
12. Decedent’s Will is dated October 27, 2005, and it was executed with the formalities and solemnities and under the circumstances required by law to make it a valid will. The Will is the same will that the Bank of New York Mellon filed for probate in this proceeding on May 20, 2016, and the Will was presented for probate by the Bank of New York Mellon within four years of Decedent’s date of death.
13. While the Court previously determined that Applicant was not required to prove that he was not in default in failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death, the Court nevertheless
12 found that Applicant was not in default for failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death.
19. All the necessary proof required for the probate of the Will has been made, and the Will is entitled to probate as a muniment of title.
20. There is real property, including mineral interests in Shelby County, Texas, and San Augustine County, Texas, and personal property, including jewelry, remaining in Decedent’s Estate.
21. Applicant is a beneficiary of the Will, and the Will designates Applicant as executor of Decedent’s Estate. Applicant defended the Will, presented the Will, and prosecuted this proceeding in good faith and with just cause.
22. This Court admitted Decedent’s Will to probate as a muniment of title on December 4, 2020, and waived the requirement for filing an affidavit under Texas Estates Code Section 257.103.
Conclusions of Law
24. On May 20, 2016, the Bank of New York Mellon filed an application to probate Decedent’s Will, and four years did not elapse between the date of Decedent’s death and the filing of that application to probate Decedent’s Will.
27. Applicant’s petition for bill of review, including amendments thereto, and Applicant’s application to probate Decedent’s Will, including amendments thereto, constitute a continuation of the original proceedings filed by the Bank of New York Mellon and the dependent administrator of Decedent’s Estate in this Cause No.
28. On July 13, 2020, this Court granted Applicant’s (1) Traditional Motion for Summary Judgment on Bill of Review in Cause No. C-1-PB-19-001840, which vacated portions of the Court’s January 19, 2018, Order Approving Account for Final Settlement, Closing Estate, and Discharging Dependent Administrator in this Cause No. and (2) Traditional Motion for Summary Judgment on Presenting Will for Probate in this Cause No., which determined that Decedent’s Will was “presented for probate” on or before the fourth anniversary of Decedent’s date of death.
29. As a result of the summary-judgment orders, the Court determined that Applicant was not required to prove that he was not in default in failing to present
13 the Will for probate on or before the fourth anniversary of Decedent’s date of death. [Kuhr], however, alleged that Applicant was still required to prove he was not in default in failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death.
33. Decedent died on July 20, 2014, and four years did not elapse between the date of Decedent’s death and the filing of the May 20, 2016, application to probate Decedent’s Will. Applicant’s applications to probate Decedent’s Will, including his Third Amended Application for Probate of Will as Muniment of Title, constitute a continuation of the original proceedings filed by the Bank of New York Mellon and the dependent administrator of Decedent’s Estate in this Cause No.
34. Decedent’s Will is dated October 27, 2005, and it was executed with the formalities and solemnities and under the circumstances required by law to make it a valid will. The Will is the same will that the Bank of New York Mellon filed for probate in this proceeding on May 20, 2016, and the Will was presented for probate by the Bank of New York Mellon within four years of Decedent’s date of death.
35. While the Court previously determined that Applicant was not required to prove that he was not in default in failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death, the Court nevertheless found that Applicant was not in default for failing to present the Will for probate on or before the fourth anniversary of Decedent’s date of death.
40. All the necessary proof required for the probate of the Will has been made, and the Will is entitled to probate as a muniment of title.
42. The Court admitted Decedent’s Will to probate as a muniment of title on December 4, 2020, and waived the requirement for filing an affidavit under Texas Estates Code Section 257.103. [ 10]
10 We address Kuhr’s challenges to the findings of fact that are necessary to resolve her issues. See Tex. R. App. P. 47.1, .4. 14 Standard of Review
Although Kuhr challenges the probate court’s summary judgment rulings on
appeal, the probate court’s findings of fact and conclusions of law contain the same rulings. 11 In
an appeal from a bench trial, we review a trial court’s conclusions of law de novo, affirming the
judgment on any legal theory that finds support in the evidence. See BMC Software Belg., N.V.
v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990). A trial court’s conclusions of law may not be challenged for factual insufficiency, but we
may review the legal conclusions drawn from the facts to determine their correctness. City of
Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012); BMC Software, 83 S.W.3d at 794.
We may reverse a trial court’s judgment only if its conclusions are erroneous as a matter of law.
Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 749 (Tex. App.—Dallas 2012, no pet.);
Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.—Austin
1992, no writ).
We review a trial court’s findings of fact for legal and factual sufficiency of the
evidence by the same standards applied to a jury verdict. See Ortiz v. Jones, 917 S.W.2d 770,
772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); City of
Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (describing legal sufficiency standard of
review); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency standard
of review); see also Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017)
(explaining when no-evidence challenge should be sustained, including when evidence offered to
11 In her appellant’s brief, Kuhr represents that at trial she “put on virtually the same evidence from her summary-judgment response in support of her positions that [Decedent’s] Will was not timely presented and of [Smith’s] default in failing to timely probate [Decedent’s] Will.” She also states that her remedy if the probate court erred in granting summary judgment on presentment and default would be a trial, which she already received. 15 prove vital fact is no more than scintilla); Rocor Int’l, Inc. v. National Union Fire Ins.,
77 S.W.3d 253, 262 (Tex. 2002) (explaining that scintilla of evidence exists when “evidence
furnishes some reasonable basis for differing conclusions by reasonable minds about a vital
fact’s existence”). We review the evidence in the light most favorable to the findings, crediting
favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a
reasonable factfinder could not. City of Keller, 168 S.W.3d at 807.
In a bench trial, the trial court is the sole judge of the witnesses’ credibility and
the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.
1986); Seasha Pools, Inc. v. Hardister, 391 S.W.3d 635, 639 (Tex. App.—Austin 2012, no pet.).
The trial court may believe one witness, disbelieve others, and resolve inconsistencies in any
witness’s testimony. Kuhlmann, 722 S.W.2d at 697; Hardister, 391 S.W.3d at 639. We may not
substitute our judgment for that of the trier of fact merely because we reach a different
conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Westech Eng’g, Inc.,
835 S.W.2d at 196.
Presentation of Will for Probate
Generally, “a will may not be admitted to probate after the fourth anniversary of
the testator’s death unless it is shown by proof that the applicant for the probate of the will was
not in default in failing to present the will for probate on or before the fourth anniversary of the
testator’s death.” Tex. Est. Code § 256.003(a). When the applicant is not in default in failing to
timely present a will, the will may be probated as a muniment of title after expiration of the
four-year period. Ramirez v. Galvan, No. 03-17-00101-CV, 2018 Tex. App. LEXIS 222, at *3
(Tex. App.—Austin Jan. 10, 2018, no pet.) (mem. op.); see also Tex. Est. Code § 257.001. “As
16 used in section 256.003(a), ‘default’ means failure to probate a will because of the absence of
reasonable diligence by the party offering the instrument.” Ramirez, 2018 Tex. App. LEXIS 222,
at *3–4 (citing In re Estate of Allen, 407 S.W.3d 335, 339 (Tex. App.—Eastland 2013, no pet.)).
The burden is on the applicant to demonstrate that he is not in default in failing to present a will
for probate. Id. at *4 (citing In re Estate of Campbell, 343 S.W.3d 899, 902 (Tex. App.—
Amarillo 2011, no pet.)).
Whether the applicant is in default is generally a question of fact. Id. “Mere
ignorance of the law does not excuse the failure to file probate proceedings within the four-year
period,” but “Texas case law is quite liberal in permitting a will to be offered as a muniment of
title after the four-year limitation period has expired.” Id. (citing In re Estate of Allen,
407 S.W.3d at 339). “Indeed, the proponent’s belief that probate was unnecessary has been
found a sufficient excuse.” See id. at *4–7 (citing cases in which courts have found that
proponent’s belief was sufficient excuse and observing that husband, who had possession and
control of his wife’s will for six years after her death, “did not offer the will for probate, not
through any lack of diligence, but because he did not realize any further act was necessary”).
Did the probate court err in concluding that the will was timely presented for probate and admitting the will to probate without requiring Smith to prove that he was not in default?
In her first and second issues, Kuhr argues that probate court erred when it
concluded that the will was presented for probate within four years of Decedent’s death and
when it admitted the will to probate without requiring Smith to prove that he was not in default
as required under section 256.003(a) of the Texas Estates Code. The evidence established that
Smith had possession of the original of the will but did not file it with an application to probate
the will until 2019, which was more than four years after Decedent’s death; that within the four-
17 year period, the attorney ad litem and the Bank filed copies of the will; and that the Bank filed an
application to probate the will with a copy of the will within the four-year period but later
amended its application to remove its request to probate the will.
Kuhr argues that no application to probate the will was pending when the estate
closed because the Bank’s amended application removed the request that the will be probated
and superseded its prior application to probate the will, see Tex. R. Civ. P. 65 (explaining that
substituted instrument generally takes place of original); Bos v. Smith, 556 S.W.3d 293, 306
(Tex. 2018) (“Amended pleadings supersede prior pleadings, and any claim not carried forward
in an amended pleading is deemed dismissed.”); that Smith cannot rely on the Bank’s
“abandoned” application to probate the will that was “superseded” by the amended application
and “no longer a part of the record”; and that in any case, the “Bank never properly pleaded to
probate a copy of [Decedent’s] Will,” as opposed to the original.
As support for her arguments that Smith cannot rely on or continue the Bank’s
“dismissed” application to probate the will and that he must prove that he was not in default,
Kuhr cites Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019). That case, however, does not
address whether an applicant may rely on another timely-filed application to establish that a will
was presented for probate within the four-year period. In that case, no applicant had presented
the will within the four-year period. Id. at 333; see also Ross’ Estate v. Abrams, 239 S.W. 705,
705–10 (Tex. Civ. App.—San Antonio 1922) (explaining that “probate” is “act or process of
proving a will” and that “present for probate” is synonymous with “file for probate” and
concluding that will was presented within four years when application was filed within four
years even though new application to probate was filed forty-five years later), aff’d sub nom.
Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex. Comm’n App. 1923). The applicant qualified in
18 her individual capacity as an interested person but filed an application to probate the will in her
capacity as executor of a separate estate nine years after the decedent’s death. See Ferreira,
575 S.W.3d at 334–35 (explaining that interested person may apply to probate will in individual
capacity); see also Tex. Est. Code § 22.018(1) (defining “interested person”). In that situation,
the Texas Supreme Court held that under section 256.003(a) of the Texas Estates Code, “when
an applicant seeks late-probate of a will in her individual capacity, only the applicant’s conduct
is relevant to determining whether she ‘was not in default.’” Ferreira, 575 S.W.3d at 338. In
other words, the court concluded that default by another applicant was not imputed to the
applicant and that on remand, she would have the opportunity to amend her pleadings to pursue
probate of the will in her individual capacity. Id.
Kuhr does not challenge the portion of the probate court’s bill-of-review order
that vacated the January 2018 order in the estate proceeding “to the extent that it states ‘there is
no real property remaining in the estate’ and ‘there is no property remaining in the Estate,’” and
she does not dispute that Smith’s petition for bill of review was timely filed and that there were
estate assets that remained undistributed when the administration of the estate was closed. 12 See
Tex. Est. Code § 55.251 (authorizing interested person by bill of review to have order rendered
by court revised or corrected on showing of error in order); Buck v. Estate of Buck, 291 S.W.3d 46,
12 For example, in her appellant’s brief, Kuhr states that “[Decedent’s] Estate closed without determining title to or distributing her separate-property mineral interests.” Kuhr also has not challenged the probate court’s conclusion of law 41, that concluded: “There is real property, including mineral interests in Shelby County, Texas, and San Augustine County, Texas, and personal property, including jewelry, remaining in Decedent’s estate.” Her argument as to the bill-of-review proceeding is that error in that proceeding “is overshadowed by the presentment issues presented here.” She also contends that her complaints about error in the bill of review decision “would take the parties back to the beginning of the proceedings for a new hearing on that issue,” which “is not a useful remedy under these circumstances.” 19 52 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.) (listing elements of statutory bill of
review and explaining that purpose is to review and correct errors, “not merely to set aside
decisions, orders or judgments rendered by the probate court” (citation omitted)); see also Tex.
Est. Code § 362.001 (stating when administration of estate should be closed). In this procedural
posture, it is not dispositive that the original of the will was not filed within the four-year period
or that the Bank amended its application to remove its request to admit the will to probate.
The Bank continued to reference the will in its amended application, the attorney
ad litem filed a copy of the will within the four-year period and notified the probate court of the
need to address the will, 13 and the probate court ordered the parties to schedule a hearing to
determine heirship or to probate the will, but no hearing had occurred when the administration of
the estate was closed in January 2018. Under these circumstances, although the administration
of the estate was not reopened, the bill-of-review order’s effect was to continue the estate
proceeding, giving Smith the opportunity to file the original of the will and his application to
probate the will as a muniment of title in that proceeding. See Tex. Est. Code § 257.001
(allowing will to be probated as muniment of title when court finds that there is no necessity for
administration of estate); Woods v. Kenner, 501 S.W.3d 185, 191, 194–95 (Tex. App.—Houston
[1st Dist.] 2016, no pet.) (affirming order granting statutory bill of review, explaining
requirements for probating will as muniment of title, and allowing copy of will to be probated as
muniment of title even though estate already had been closed); see also McDonald v. Carroll,
783 S.W.2d 286, 286–88 (Tex. App.—Dallas 1989, writ denied) (reversing denial of statutory
13 In her reply brief, Kuhr argues that after the Bank filed its amended application, that there was no longer a copy of the will that was part of the record, but the attorney ad litem also filed a copy of the will with her objections. 20 bill of review, ordering probate court to vacate order that approved final accounting, and
remanding to probate court for further proceedings).
For these reasons, we conclude that the probate court did not err in concluding
that the will was presented for probate within the four-year period or in admitting the will to
probate without requiring Smith to prove that he was not in default. See Eubanks v. Jackson,
280 S.W. 243, 244-45 (Tex. Civ. App.—Waco 1925, writ ref’d) (stating that default
question “does not arise” when probate of will was continuation of original proceeding
filed within limitations period); Abrams, 239 S.W. at 705–10; see also Townsend v. Phillips,
545 S.W.2d 898, 900 (Tex. Civ. App.—Texarkana 1977, no writ) (concluding that will was
“presented for probate” within four years even though executor did not file application within
four years because application for administration that was filed by another party “sought probate
of the will if it could be produced” and matter remained pending). Thus, we overrule Kuhr’s
first and second issues.
Did the probate court err in finding that Smith was not in default?
Assuming that the probate court erred in concluding that the will was timely
presented, Kuhr argues in her third issue that Smith failed to prove that he was not in default in
failing to present the will for probate within the four-year period. She argues that it was his own
fault and that his only evidence was his “alleged mistaken belief” that the will had been probated
and his “unfamiliarity with the probate process,” which are “no excuse.” As support, Kuhr
argues that the evidence established that: (i) Smith did not consult with an attorney during the
four-year period; (ii) he had custody of the original but did not tender it to the Bank or file it with
the probate court during the four-year period, see Tex. Est. Code § 252.201 (requiring person
21 with custody of testator’s will to deliver will to clerk of applicable court); (iii) he did not tell the
dependent administrator about the mineral interests but negotiated leases on them 14; (iv) he did
not act on the landman’s advice in 2017; (v) he was aware of the “probate filings” in the estate
proceeding; and (vi) he “[m]isrepresented to the probate court, ‘twice,’ his reasons for not timely
filing his wife’s will for probate.” Kuhr characterizes Smith’s testimony that he was “confused”
and “mistakenly believed” that the will had been probated as a “false narrative,” and argues that
Smith “cannot rely on his own misrepresentations to excuse his delay in probating [the
Decedent’s] Will.”
It, however, was within the province of the probate court to determine Smith’s
credibility and to resolve the conflicts in the evidence. See Kuhlmann, 722 S.W.2d at 697;
Hardister, 391 S.W.3d at 639; see also In re Estate of Ozee, No. 06-12-00070-CV, 2012 Tex.
App. LEXIS 9690, at *7 (Tex. App.—Texarkana Nov. 26, 2012, no pet.) (mem. op.) (stating that
“[t]he trial court, as fact-finder, was the sole determiner of the credibility of the witnesses, and
we are not to invade the fact-finder’s domain” and upholding trial court’s resolution of
conflicting evidence about applicant’s belief that probate of will was not necessary). Kuhr
argues that Smith “should have objectively known” that others had not probated the will, but the
probate court, as the factfinder, reasonably could have found credible Smith’s testimony that he
thought that the will was being and had been probated, even though it was Smith’s subjective
14 Kuhr argues that Smith “concealed” the mineral interests from the dependent administrator, but the evidence showed that the mineral interests were a matter of public record. Copies of the leases show that they were filed in the applicable county’s public records. Smith also testified that he and Decedent filed bankruptcy in 2011 and that the bankruptcy trustee held the mineral interests but ultimately returned them, and the evidence showed that the dependent administrator was aware of the bankruptcy. The dependent administrator also notified Kuhr of the estate proceeding, asking her for information about the Decedent’s assets, but did not receive any response from her. 22 belief that turned out to be incorrect. See In re Estate of Ozee, 2012 Tex. App. LEXIS 9690,
at *7.
Kuhr relies heavily on the landman’s handwritten notes recounting alleged
conversations with Smith in 2017 and urges that the notes establish that the landman told Smith
within the four-year period that the will had not been probated and would not be probated by the
dependent administrator, contending that the “landman’s business records establish that [Smith]
knew his wife’s will was not going to be probated before the estate was closed.” Kuhr also
argues that Smith “has advanced no argument as to why these records would not be reliable,”
that “there in fact is no reason that they would not be,” and that the landman had “no motivation”
“to create false records of his conversations with [Smith].” The landman, however, was not
called as a witness, and his notes and Smith’s testimony were equivocal. The landman’s notes
recount that he alerted Smith in July 2017 to “confusion” and in August 2017 that Smith would
need to have the will “properly probated” after the “current case/cause closed,” but he also noted
Smith’s call to him in January 2018, approximately four months later, notifying him that the
“probate for [Decedent] had been finalized.”
As to Smith’s testimony, he admitted in his deposition that he had communicated
with the landman in 2017, but he also testified that he thought the will had been probated during
the estate proceeding and, consistent with this belief and his status as the sole beneficiary under
the terms of the will, the company made two royalty payments to Smith shortly after the
administration of the estate closed. 15 Smith’s testimony about when he learned that the will had
15In her reply brief, Kuhr argues that Smith “duped the landman into paying the bonus money” and that “it was implausible that the landman would have thought that the proceedings that were going to be finalized was the closing of the estate without the probate of the will” but also argues that—presumably because the landman was experienced and knowledgeable—Smith 23 not been probated—when the company told him in 2019—is also consistent with the timing of
filing his application to probate the will and petition for bill of review. See Chovanec
v. Chovanec, 881 S.W.2d 135, 137–38 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing
evidence that applicant was not aware that probate was necessary and was unaware of title
problems during period when mineral leases were executed on land and that when applicant
realized there were title problems, applicant immediately offered will for probate, and explaining
that “[t]hese excuses are generally accepted when the will is used to establish a link in the chain
of title”).
Kuhr asserts that “[n]o Texas case on default is precisely analogous to this one”
and that “Brown v. Byrd may be the most analogous fact pattern to the case at bar.” See
512 S.W.2d 753, 757 (Tex. App.—Tyler 1974, no writ). In that case, however, no applicant had
offered the will for probate within the four-year period, and the applicant was aware that the will
had not been offered for probate within the four-year period, but she waited “approximately
twenty-seven years prior to her filing application.” Id. In contrast, evidence supported that
Smith believed that the will had been probated during the four-year period and that he timely
filed a bill of review after learning that the will had not been probated.
The probate court, as the factfinder, reasonably could have credited the evidence
that Smith believed that the will had been probated in the estate proceeding and that it was
unnecessary for him to take any action before he filed his application in 2019. See In re Estate of
should have followed the landman’s advice and immediately filed his own application to probate the will after speaking with the landman. If the probate court believed that the landman was experienced and knowledgeable, the probate court reasonably could have found that Smith did not “dupe” him or the company into making payments. Again, the landman was not called as a witness to testify, and it was up to the probate court, as the factfinder, to determine the credibility and weight to be given the conflicting or inconsistent evidence. 24 Allen, 407 S.W.3d at 340–41 (explaining that “[a] belief that probate has been accomplished is
certainly as reasonable an excuse for inaction as a belief that probate is unnecessary” and that
although it may have been “naïve” to believe that will had been probated, “lack of knowledge
regarding the probate process does not amount to an absence of reasonable diligence as a matter
of law” (quoting Norrell v. Norell, No. 05-96-00441-CV, 1997 Tex. App. LEXIS 5540, at *5
(Tex. App.—Dallas Oct. 23, 1997, no pet.) (not designated for publication))); In re Estate of
Perez, 324 S.W.3d 257, 263 (Tex. App.—El Paso 2010, no pet.) (explaining that “trial court, as
fact finder, was free to find credibility in [wife’s] version of the evidence, and conclude that she
was not in default for failing to probate [her husband’s] will within the statutory time limit”); see
also In re Estate of Jackson, No. 14-16-00519-CV, 2017 Tex. App. LEXIS 8001, at *7–8 (Tex.
App.—Houston [14th Dist.] Aug. 22, 2017, no pet.) (mem. op.) (concluding that evidence was
sufficient to support trial court’s finding that applicant was not in default where applicant
believed that he did not need to probate will “because he believed that having the will and the
deed to the Calumet property meant that the property was his” and observing that “trial court, as
the fact finder, was the judge of [applicant’s] credibility” and “entitled to credit [his]
testimony”)); cf. In re Estate of Rothrock, 312 S.W.3d 271, 274–75 (Tex. App.—Tyler 2010, no
pet.) (affirming trial court’s finding that applicant was in default for failing to probate will within
four years where applicant was “successful attorney” who “should have known that unexpected
events often happen in life” and relying on family agreement not to probate will that was in
applicant’s custody). Thus, we conclude that the evidence was sufficient to support the probate
court’s finding that Smith was not in default in failing to present the will within four years of
Decedent’s death. We overrule Kuhr’s third issue.
25 Did the probate court err when it admitted the will to probate as a muniment of title?
In her fourth issue, Kuhr argues that the probate court erred when it admitted the
will to probate as a muniment of title.
The muniment of title statute provides that “[a] court may admit a will to probate
as a muniment of title if the court is satisfied that the will should be admitted to probate and the
court (1) is satisfied that the testator’s estate does not owe any unpaid debt, other than any debt
secured by a lien on real estate; or (2) finds for another reason that there is no necessity for
administration of the estate.” See Tex. Est. Code § 257.001. “Probating a will as a muniment of
title provides a means to probate a will quickly and cost-efficiently when there is no need for
administration of the estate.” In re Estate of Jackson, 2017 Tex. App. LEXIS 8001, at *9
(quoting In re Estate of Kurtz, 54 S.W.3d 353, 355 (Tex. App.—Waco 2001, no pet.)). “In
challenging a trial court’s decision to admit a will to probate solely as a muniment of title, the
appellant bears the burden of showing ‘a clear abuse of discretion’ by the trial court.” Id. at *8–
9. “A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference
to any guiding rules and principles.” Id. at *9.
Because we have concluded that the probate court did not err in its conclusions
and findings that the will was presented for probate during the four-year period and that Smith
was not in default, it follows that the probate court did not err when it concluded that the will
should be probated as a muniment of title only. The probate court’s unchallenged findings of
fact included:
14. On October 27, 2005, when she executed the Will, Decedent had attained the age of 18 years of age and was of sound mind.
15. Decedent never revoked the Will.
26 16. No child was born to or adopted by Decedent after Decedent executed the Will. No marriage of Decedent was dissolved after the Will was made. None of the following is named as a devisee in the Will: the state, a governmental agency of the state, or a charitable organization.
17. There are no unpaid debts owing by Decedent’s Estate other than those secured by liens on real estate. Decedent did not apply for and receive Medicaid benefits on or after March 1, 2005.
18. There is no necessity for administration of Decedent’s estate.
Based on these unchallenged findings, the probate court acted within its discretion
to admit the will to probate as a muniment of title. See Tex. Est. Code § 257.001; Woods,
501 S.W.3d at 191, 194–95 (affirming order granting bill of review and concluding that will
could be probated as muniment of title); see also Kuhlmann, 722 S.W.2d at 696 (noting that
unchallenged findings of fact “are binding on an appellate court unless the contrary is established
as a matter of law, or if there is no evidence to support the finding”); McAleer v. McAleer,
394 S.W.3d 613, 620 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that
unchallenged finding was binding on appellate court where “there [was] some evidence in the
record supporting the finding”). We overrule appellant’s fourth issue.
CONCLUSION
For these reasons, we dismiss cause number 03-21-00114-CV for lack of
jurisdiction, overrule Kuhr’s issues in the consolidated appeals, and affirm the probate court’s
orders in the consolidated appeals.
27 ____________________________________ Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Smith
Cause number 03-20-00416-CV: Affirmed
Cause number 03-20-00425-CV: Affirmed
Cause number 03-20-00583-CV: Affirmed
Cause number 03-21-00114-CV: Dismissed for Lack of Jurisdiction
Filed: April 29, 2022