Opinion
No. 04-07-00089-CV
Delivered and Filed: December 12, 2007.
Appeal from the Probate Court No. 1, Bexar County, Texas, Trial Court No. 94-PC-3593, Honorable Polly Jackson Spencer, Judge Presiding.
AFFIRMED
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
David Diaz Montez appeals the probate court's order declaring that his claims are barred by res judicata and that he forfeited his rights under ceratin wills and trusts. Montez asserts three issues on appeal contending: (1) his claims are not barred by res judicata; (2) he did not forfeit his rights under the wills and trusts; and (3) any forfeiture of his rights under the wills and trusts violated his due process. We affirm the trial court's judgment.
Background
In October of 1994, Alejandro Silva Montez and Esther Diaz Montez died. On December 20, 1994, an application to set aside two inter vivos trusts established by Alejandro and Esther was filed by Kathleen Ebert Viesca as attorney for David and several of his siblings (referred to herein as the "contestant siblings"). The application asserts that Alejandro and Esther lacked the mental capacity to execute the trust documents and that the signatures on the trust and related real estate documents were obtained by fraud and/or undue influence.
On January 27, 1995, Laurie Patricia Montez, another sibling of David, filed an application for probate of the wills of Alejandro and Esther. On February 10, 1995, Viesca filed a contest to the application for probate of the wills as attorney for David and the contestant siblings, asserting that Alejandro and Esther lacked the mental capacity to execute the wills. Laurie and two other siblings, Marylinda Rios and Diane Aguinaga, responded to the contest, noting that David and the contestant siblings were in violation of the no-contest clauses contained in the wills and trusts. The response stated that based on this violation, "Contestants are to be rightfully excluded as beneficiaries under said Wills and Trust[s]."
On September 8, 1995, Viesca filed a motion to withdraw as David's attorney based on the inability to establish the necessary level of communication and cooperation. On April 11, 1996, Laurie, Rios, and Aguinaga filed a motion for summary judgment seeking a declaration that the wills and trusts were valid. On June 12, 1996, David filed a late pro se response to the summary judgment motion. In his response, David continued to assert that Alejandro lacked capacity to execute the will.
On June 18, 1996, the probate court entered an order granting the summary judgment, declaring the wills and trusts to be valid, and admitting the wills to probate. The order states that the contestants take nothing as to the proponents and that the entire case was disposed "with finality." On August 28, 1996, the probate court entered an order closing the estate.
In 2004, David began filing a series of pleadings asserting various causes of action against his two siblings, Marylinda and Laurie, who were the trustees of the trusts. On December 22, 2004, David filed a motion seeking the removal of Marylinda and Laurie as trustees. On March 20, 2006, Marylinda and Laurie filed an amended answer and a counterclaim for declaratory relief, seeking a declaration that David forfeited his rights as a beneficiary under the wills and trusts. Marylinda and Laurie also asserted res judicata as an affirmative defense based on the summary judgment entered by the probate court on June 18, 1996.
On April 18, 2006, the trial court conducted a hearing on the request for declaratory relief. On November 3, 2006, the probate court entered an order finding that David's claims were barred by res judicata and that David lacked standing to bring any cause of action relating to the wills and trusts because he had forfeited his interest.
Discussion
In his first issue, David combines his challenge to the trial court's determination that he forfeited his rights under the no contest provision of the wills and trusts with the issue of whether his claims are barred by res judicata. If the trial court correctly determined that David had forfeited his interests, we need not address the res judicata defense. See Tex. R. App. P. 47.1 (stating opinions should address only issues necessary to final disposition of appeal).
Forfeiture provisions, or in terrorem clauses, in wills and trusts are to be strictly construed, and forfeiture is to be avoided if possible. In re Estate of Schiwetz, 102 S.W.3d 355, 365 (Tex.App. — Corpus Christi 2003, pet. denied). A breach of a no contest clause should be declared only when the acts of the parties come within the express terms of the clauses. Id. A lawsuit challenging the testamentary capacity of the testatrix is a type of contest that will result in forfeiture. See In re Estate of Hammill, 866 S.W.2d 339, 343 (Tex.App.-Amarillo 1993, no pet.).
The documents creating the trusts in the instant case contained the following no contest provision:
If any beneficiary named in this Trust, directly or indirectly, by legal proceedings or other, challenges or contests this Trust or any of its provisions or attempts in any way to impair or invalidate any of its provisions, any gift, distribution or other provision made to or for that person under this Trust is revoked and shall be disposed of as if that contesting beneficiary had predeceased me without issue.
Similarly, the wills of Alejandro and Esther also contained the following no contest provision:
If any beneficiary named in this Will, directly or indirectly, by legal proceedings or other, challenges or contests this Will or any of its provisions or attempts in any manner to oppose or set aside the probate of this Will or impair or invalidate any of its provisions, any gift or other provision I have made to or for that person under this Will is revoked and shall be disposed of as if that contesting beneficiary had predeceased me without issue.
Further, If any beneficiary under this Will, directly or indirectly, by legal proceedings or other, challenges or contests either or both of those two Inter Vivos Trusts creating the Alejandro Silva Montez Children's Trust and the Alejandro Silva Montez Children's Trust No. 2 or any of their provisions or attempts in any way to impair or invalidate any of their provisions, any gift or other provision I have made to or for that person under this Will is revoked and shall be disposed of as if that contesting beneficiary had predeceased me without issue.
The procedural evidence presented to the trial court in this case established that David had challenged the validity of both the wills and trusts. First, David filed a pro se response to the motion for summary judgment filed by the will proponents, asserting that Alejandro did not have mental capacity to execute the will. In addition, David was one of the parties to the pleadings seeking to set aside the trusts and contesting the application for the probate of the wills. Although David asserts in his second issue that the attorney who filed the contests to the wills and trusts was not authorized to represent him, the only proof he presented was his own affidavit stating he never authorized the attorney to file the contests on his behalf. The probate court, however, was free to reject or accept all or part of David's testimony and could have disbelieved the affidavit which was filed eight years after summary judgment was rendered against David and the contestant siblings. See Pena v. Garza, 61 S.W.3d 529, 532 (Tex.App.-San Antonio 2001, no pet.). Therefore, based on the evidence presented, the probate court properly determined that David had forfeited his rights under the wills and trusts by challenging the mental capacity of Alejandro and Esther. See In re Estate of Hammill, 866 S.W.2d at 343. Accordingly, we do not address the res judicata defense.
Finally, David contends that the forfeiture of his rights under the wills and trusts violated due process and was unconstitutional because he did not have notice of the potential forfeiture. The language in the wills and trust documents, however, was notice to David that a contest would result in forfeiture. Moreover, in the response to the contest, the will proponents noted that David and the contestant siblings were in violation of the no-contest clauses contained in the wills and the trust documents and stated that based on this violation, "Contestants are to be rightfully excluded as beneficiaries under said Wills and Trust[s]." This pleading further put David on notice of the forfeiture provisions, and David could have withdrawn his contest at that time to avoid forfeiture. See In re Estate of Hammill, 866 S.W.2d at 345 (noting dismissal of contest prior to legal proceedings being held would not result in forfeiture); Sheffield v. Scott, 662 S.W.2d 674, 677 (Tex.App.-Houston [14th Dist.] 1983, writ ref'd n.r.e.) (noting mere filing of contest does not result in forfeiture absent further action). David's final issue is overruled.
Conclusion
The probate court's judgment is affirmed.