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Court of Appeals of Texas, Dallas.


No. 05-16-00661-CV

Decided: January 26, 2017

Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers


Appellant Oscar Calvillo appeals the trial court's order admitting the will of decedent Eugene Betancourt Calvillo to probate. He contends (1) there is no evidence that the will had not been revoked; and (2) the proponent of the will was in default for failing to present the will for probate within four years of the decedent's death.1 See TEX. EST. CODE ANN. § 256.003(a) (West Supp. 2016) (“[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.”).2 We affirm.


Eugene Betancourt Calvillo died on May 20, 2010. Appellee Maria Juana Lopez Calvillo is the decedent's surviving spouse.3 Eugene and Maria Juana were married in 1986. The couple lived together until Eugene's death in 2010. Appellant Oscar Calvillo is the decedent's son by a previous marriage.

Maria Juana presented a copy of Eugene's will for probate more than four years after Eugene's death. Oscar objected, contending that Maria Juana was in default. After hearing evidence, the trial court admitted the will to probate.

The parties presented evidence on two issues at trial. First, Maria Juana sought to prove the existence and validity of the will. Second, Maria Juana sought to prove she was not in default. Oscar offered evidence that Maria Juana knew about the will within a year of Eugene's death, but failed to file the will until after the statutory period for doing so had passed.

A. Evidence of the will

Eugene was in the business of buying, renovating, and selling homes. From 1994 until his death, the tax and bookkeeping work was done for Eugene's business by Griselda Hernandez. During those years Eugene was a client of two firms where Hernandez was employed. Hernandez testified at trial that in 2007, Eugene came to her office at Select Bookkeeping and Tax Service and requested preparation of a will.

Hernandez referred Eugene to Marco Reyes, a bookkeeper and partner in the business. Reyes prepared the will using a form, filling in specific information from Eugene about disposition of his property. Eugene then signed the will in the presence of Raquel Gracia and Laura Medina, who also signed the will as witnesses. Gracia testified at trial that she also worked for Select Bookkeeping. She knew Eugene as a regular client. She identified the copy of the will and testified that she signed it. In response to questions from the court, Gracia testified that she, Eugene, and Medina all signed the will in each other's presence and in the presence of Reyes, who was a notary public. Reyes notarized the will. Gracia testified that each person signing the will was over the age of 14; each person knew the document was Eugene's will; and Eugene understood what he was doing. No one signing the will was under the influence of drugs or alcohol. Reyes, Medina, and Gracia worked together and knew Eugene as one of Select Bookkeeping's regular clients.

Reyes identified a copy of the will as a true and correct copy of the will he prepared for Eugene. Reyes testified that Eugene kept the original of the will. Hernandez testified that she made a copy of the will, and that the copy admitted into evidence at trial was a true and correct copy of the will Eugene signed at her office. She testified that as far as she knew, no other will was prepared for or signed by Eugene. The copy of the will admitted into evidence is dated December 10, 2007.4

After trial, Maria Juana filed an “Amended Application for Probate of a Copy of Will and Issuance of Letters Testamentary” and a sworn document entitled “Proof of Death and Other Facts.” In these documents, Maria Juana stated that Eugene left a valid written will that was never revoked “so far as I know.” She stated the original will was lost or stolen. She stated that the will was witnessed by Gracia and Medina, notarized by Reyes, and made self-proved. She stated that no children were born to Eugene or adopted by him after the making of the will, and no marriage was ever dissolved. Gracia and Reyes signed affidavits entitled “Proof of Subscribing Witness” that were also filed with the court with Maria Juana's amended application.

B. Evidence of lack of default

Maria Juana does not dispute that Eugene's will was not filed with the court until March 13, 2015, more than four years after Eugene's death. At trial she sought to prove that her failure to present the will for probate before the fourth anniversary of Eugene's death was not from any lack of diligence on her part.

Maria Juana testified that she visited the law firm of Domingo Garcia in the first week after Eugene's death.5 She paid $1,000 and signed a contract for representation regarding Eugene's estate. Although the details are not entirely clear, the record reflects that Anthony M. Farmer and Natasha Hoy of The Farmer Law Group represented Maria Juana as a result of her visit to Garcia's firm. At the time she hired The Farmer Law Group, Maria Juana did not have a copy of Eugene's will and did not know a will existed.

The Farmer Law Group did not file any application or other pleading on Maria Juana's behalf seeking administration of Eugene's estate. Instead, Oscar initiated the proceedings in probate court. On February 11, 2011, approximately nine months after Eugene's death, Oscar filed an application for letters of administration in the probate court. He alleged that Eugene died intestate, Oscar and Maria Juana were Eugene's only heirs, and the necessity existed for administration of Eugene's estate. Several months later, on May 2, 2011, The Farmer Law Group filed an “Answer/Opposition” to Oscar's application on Maria Juana's behalf, contending that Maria Juana was entitled to serve as administrator because she was Eugene's surviving spouse. Maria Juana's answer also stated that “[t]here is no will in this case,” and agreed that administration of the estate was necessary.

Farmer appeared at trial and answered questions from the court about his representation of Maria Juana. He informed the court that the only pleading he filed on Maria Juana's behalf was the opposition to Oscar's application for letters of administration. Farmer said that Hoy did appear at a hearing on Maria Juana's behalf but learned that Maria Juana had already hired new counsel. He explained, “[w]e were terminated at that point.”

Having heard nothing from The Farmer Law Group after paying its retainer fee, Maria Juana approached Hernandez for a referral to another lawyer. She explained that Farmer was not returning her telephone calls. Hernandez referred Maria Juana to John M. Lozano.

Lozano testified at trial that he first met Maria Juana in 2010, and that she was referred by Reyes or Hernandez at Select Bookkeeping. He did not receive any information from the office of Domingo Garcia, The Farmer Law Group, Natasha Hoy, or Anthony Farmer. Maria Juana retained Lozano, signing a contract and paying an initial fee of $450.

On May 2, 2011, the same date that Farmer filed the opposition to Oscar's application, Lozano filed an application for independent administration and letters of administration on Maria Juana's behalf. This application also recited that Eugene did not leave a will. Maria Juana testified that Lozano did not tell her Oscar had filed an application for letters of administration.

The record does not reflect the exact date Maria Juana became aware that Eugene had signed a will. Maria Juana testified that when Eugene died she did not know he had a will. She testified that she obtained a copy of the will from Hernandez later in 2010, when Hernandez was preparing 2010 tax returns. Lozano testified that some time after he met Maria Juana, she brought him a copy of Eugene's will. But Maria Juana testified that Hernandez sent the will to Lozano. There was evidence that Select Bookkeeping faxed a copy of the will to Lozano on June 23, 2011. Lozano testified that on that same date, he sent a copy of Eugene's will to Richard Bufkin, Oscar's lawyer.6

In response to questions by the court, Bufkin explained that he provided the copy of the will to Oscar. Oscar told Bufkin that he did not wish to contest the will, and instructed Bufkin not to proceed with Oscar's February 2011 application for letters of administration. Bufkin called Lozano, telling him that he should proceed to probate the will because Oscar had instructed Bufkin to do nothing further on Oscar's application.

Lozano, however, did not make any filings with the court on Maria Juana's behalf until six months later, on December 30, 2011, when he filed an application to probate Eugene's will. The application recites that Eugene “left a valid written Will dated December 10, 2007, which was never revoked and is filed herewith.” No copy of a will was attached, and there is no evidence that a will was filed with the probate court on that date. Lozano testified that “I was always under the impression that the Will had been attached to the Application,” because the copy of the application in his file had a copy of the will with it. He first learned that the will had not been filed with the court from Daniel Perez, Maria Juana's attorney at the time of trial. Lozano testified he was “shocked to hear” that there was no will on file.

In response to questions by the court, Lozano confirmed that he had a copy of the will at least six months before he filed the application for probate. He testified that he obtained the copy from Maria Juana. Although he did not specifically recall, he said that Bufkin must have requested a copy of the will verbally, because there was no written request in Lozano's file. Although he was aware that Bufkin had filed an application for letters of administration on Oscar's behalf in February 2011, Lozano did not serve Bufkin with a copy of Maria Juana's December 2011 application for probate of the will. Nor did Lozano file a motion to withdraw from the case. Lozano filed nothing further on Maria Juana's behalf.

In June, 2014, Oscar applied for issuance of letters of administration and a declaration of heirship. He alleged that on November 23, 2010, he made a demand on Maria Juana for delivery of a copy of any will made by Eugene. He alleged that he did not receive a copy of a will until June 23, 2011. He alleged that the will had never been filed with the court, even though Maria Juana had a copy in her possession at least by June 23, 2011, almost three years before the statutory deadline for presenting the will for probate. He sought a declaration of heirship because Maria Juana was in default for failing to present the will for probate within four years of Eugene's death.

In August, 2014, Oscar moved to compel discovery responses from Maria Juana, serving a copy of the motion on Lozano. The trial court granted the motion and ordered that Maria Juana pay $1000 in attorney's fees to Oscar as sanctions for her failure to respond. Maria Juana testified Lozano never told her about the sanction.

Maria Juana testified that neither Farmer nor Lozano:

• asked her for more money to pursue the case;

• asked her for a copy of the will;

• informed her of court hearings or took her to any;

• told her he was going to withdraw from her case; or

• informed her of any need to appear in court.

In response to questions by the court, Maria Juana also testified that she was never asked by Bufkin to produce the original or a copy of the will. She also explained that her home was burglarized more than once since her husband's death and paperwork had been taken.

The record does not reflect the date on which Maria Juana hired Daniel Perez, her attorney at the time of trial. Perez's first filing on Maria Juana's behalf, a motion to quash a deposition notice, was made on February 16, 2015. On March 13, 2015, Perez filed an amended application for probate of a copy of Eugene's will. A copy of the will was attached.

After trial, the trial court signed an order admitting Eugene's will to probate. Oscar filed a request for findings of fact and conclusions of law, as well as a notice of past due findings, but the trial court did not make any. This appeal followed.


An applicant for probate of a will must prove “to the court's satisfaction” that “the testator did not revoke the will.” TEX. EST. CODE § 256.152(a)(1) (West Supp. 2016). When an original will cannot be located and was last seen in the testator's possession, a presumption arises that the testator destroyed the will with the intent of revoking it. Woods v. Kenner, 501 S.W.3d 185, 197 (Tex. App.—Houston [1st Dist.] 2016, no pet). The proponent must overcome this presumption by a preponderance of the evidence. Id. This burden can be met with evidence of circumstances contrary to the presumption. Id. Evidence that the decedent recognized his will's continued validity and had continued affection for the primary beneficiary of his will, without evidence that he was dissatisfied with the will or had any desire to change or cancel it, is sufficient proof of circumstances contrary to the presumption. Id.

A will must be filed for probate within four years of the testator's death “unless it is shown by proof that the applicant for the probate of the will was not in default” for failing to timely present the will for probate. TEX. EST. CODE ANN. § 256.003(a). As used in the statute, “default” means “failure to probate a will due to the absence of reasonable diligence on the part of the party offering the instrument.” Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. denied) (construing predecessor statute). The burden is on the proponent of a will to show that she was not in default for failing to present the will for probate within the proper time. Id. Whether the party applying for probate is in default is ordinarily a question of fact for the trial court. In re Estate of Hammack, No. 12-15-00246-CV, 2016 WL 1446083, at *2 (Tex. App.—Tyler Apr. 13, 2016, no pet.) (mem. op.).

Although the trial court failed to file findings of fact and conclusions of law in response to Oscar's timely request and notice of past due findings, we conclude that this failure did not prevent Oscar from properly presenting his case to this Court.7 See Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). Accordingly, we imply findings by the trial court that Eugene did not revoke his will and that Maria Juana was not in default. See id. Oscar challenges the sufficiency of the evidence to support these findings.

A trial court's findings of fact, express or implied, are reviewable for legal and factual sufficiency by the same standards applied in reviewing the sufficiency of the evidence supporting a jury's finding. See, e.g., Sheetz v. Slaughter, No. 05-14-00982-CV, 2016 WL 4582178, at *4 (Tex. App.—Dallas Aug. 31, 2016, no pet.) (discussing standards of review in appeal from bench trial). We set aside the finding for factual insufficiency only if the finding is so contrary to the evidence as to be clearly wrong and manifestly unjust. See id. The trial court's conclusions of law, express or implied, are reviewed de novo. See id. Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. See id.; see also Hammack, 2016 WL 1446083, at *2.


1. Revocation

In his first issue Oscar argues there was no evidence that Eugene did not revoke his will other than the equivocal statement in Maria Juana's post-trial affidavit that the will “was never revoked so far as I know.” He relies on In re Estate of Wilson, 252 S.W.3d 708, 713–14 (Tex. App.—Texarkana 2008, no pet.), for his contention that Maria Juana's affidavit was legally insufficient proof that Eugene did not revoke his will. In Wilson, the proponent of the will was the decedent's widow. She and the decedent had drafted the will using a form on the internet. Id. at 710. The record did not contain any direct evidence of why the original could no longer be located. Id. at 713. The only testimony offered by the decedent's widow regarding revocation was in an affidavit of proof of death. Id. In the affidavit, she stated, “As far as I know and believe, Decedent left a will dated August 25, 2004 and never revoked.” Id. The court concluded that an affidavit based on the affiant's “best knowledge and belief” was no evidence of the facts asserted. Id. at 713–14. There was no evidence of continued affection and no evidence that the decedent had recognized the will's continued validity; evidence that the parties had remained married was insufficient to rebut the presumption of revocation. Id. at 714.

Here, in contrast, there was evidence that Maria Juana's home had been burglarized after Eugene's death and that important papers had been taken. Maria Juana and Eugene were married for 24 years, living together until Eugene's death. Unlike the proponent in Wilson, Maria Juana did not help Eugene draft the will. Eugene himself approached Hernandez about his need for a will, and others in her office drafted and witnessed the will. There was evidence that after Eugene signed the original of the will, he permitted Hernandez to make and keep a copy. Eugene continued to use the services of Hernandez's company until his death, as he had for more than a decade prior to signing his will, but did not request that another will be drafted. Similarly, in In re Estate of Perez, 324 S.W.3d 257, 261 (Tex. App.—El Paso 2010, no pet.), the court considered evidence including the testimony of the decedent's lawyer that he had prepared the decedent's will, and that the decedent never asked him to revoke it or to make a new will. The court concluded the proponent met her burden to rebut the presumption of revocation. See id. Here, the record includes evidence in addition to Maria Juana's statement in her affidavit that Eugene never revoked his will as far as she knew. The evidence supports the trial court's conclusion that Maria Juana proved “to the court's satisfaction” that Eugene did not revoke his will. See TEX. EST. CODE § 256.152(a)(1); Sheetz, 2016 WL 4582178, at *4. We decide Oscar's first issue against him.

2. Default

Maria Juana offered evidence to establish her “reasonable diligence” in presenting Eugene's will for probate. See Schindler, 119 S.W.3d at 929. She first sought advice of an attorney within a week of Eugene's death. She paid the attorney, Farmer, a fee of $1000 and signed a contract for representation regarding Eugene's estate. Farmer conceded he filed only one document relating to Eugene's estate, almost a full year after Eugene's death, and only in response to a filing by Oscar. When Farmer would not return her calls, Maria Juana sought a referral to another attorney from Hernandez, who was preparing tax returns relating to Eugene's business. Maria Juana retained the second attorney, Lozano, and paid him a fee. Although Lozano obtained a copy of Eugene's will, he waited more than six months to file an application for probate. Maria Juana signed the application, and could have concluded she had taken the necessary steps to probate the will. When Lozano filed the application, however, he failed to ensure that a copy of the will was actually filed with the court. He also failed to serve a copy of the application on either Oscar or Bufkin, Oscar's attorney of record. Lozano took no further action.

Most of the delay at issue took place between Lozano's filing of the application for probate in December 2011 and the end of the statutory period on May 10, 2014. During this time, neither Maria Juana nor Oscar had any notice that the will had not, in fact, been filed for probate. After the statutory period elapsed, Lozano's failure to answer discovery resulted in the assessment of a $1000 sanction against Maria Juana, which he failed to disclose to her. Maria Juana retained a third attorney, and a copy of the will was finally filed for probate, four years and ten months after Eugene's death.

From this evidence the trial court could have found that Maria Juana's delay in presenting the will for probate until ten months after the statutory deadline had elapsed did not constitute a default. She immediately sought legal advice after Eugene's death. She paid legal fees. She signed documents. When her attorneys were unresponsive, she acted. The record reflects that Maria Juana's first language was not English and her formal education ended in the sixth grade. Where a proponent has offered a reasonable excuse for failing to probate a will during the statutory period, such as reliance on the advice of counsel or a belief that everything necessary had been done, courts have found sufficient evidence to support a finding that the proponent was not in default. See In re Estate of Allen, 407 S.W.3d 335, 340–42 (Tex. App.—Eastland 2013, no pet.) (collecting cases); Hammack, 2016 WL 1446083, at *3 (Texas courts have been “quite liberal” in admitting wills to probate where there is any evidence of probative force which would excuse failure to offer will sooner).

Oscar contends that Maria Juana is bound by the acts and omissions of her attorneys, citing and quoting Fonseca v. State, 163 S.W.3d 98, 101 (Tex. App.—Fort Worth 2005, pet. ref'd), and Rad v. Black, No. 03-07-00574-CV, 2008 WL 2777320, at *4 (Tex. App.—Austin 2008, no pet.) (mem. op.). Neither of these cases, however, addresses the question of a will proponent's default under section 256.003(a) of the Estates Code.8 As explained in In re Estate of Allen, “courts have found that evidence that a proponent relied on counsel's advice was sufficient to support a finding that the proponent was not in default” or to raise a fact question on the issue. In re Estate of Allen, 407 S.W.3d at 340. The court also explained, “ ‘[t]he tendency of our courts has been from [their] earliest decisions to permit wills to be filed after the four-year period, when there is any evidence of a probative force which would excuse the failure to offer the will sooner.’ ” In re Estate of Allen, 407 S.W.3d at 339 (quoting Armstrong v. Carter, 291 S.W. 626, 627 (Tex. Civ. App.—Waco 1927, no writ)).

The trial court's finding that Maria Juana was not in default is not so contrary to the evidence as to be clearly wrong and manifestly unjust. See Sheetz, 2016 WL 4582178, at *4. We decide Oscar's third issue against him.


We have decided Oscar's first and third issues against him, and he has withdrawn his second issue. We affirm the trial court's judgment.


1.   In his reply brief appellant withdrew his second issue complaining that the will was not introduced into evidence at trial. As appellant concedes, the will copy was introduced as an exhibit, admitted into evidence, and is contained in the appellate record.

2.   Although the Estates Code did not take effect until after Eugene's death, the then-effective section of the Probate Code contained the same requirement. See Act of May 5, 1971, 62nd Leg., R.S., ch. 173, § 8, 1971 TEX. GEN. LAWS 967, 976 (formerly codified at TEX. PROBATE CODE 73); see also Estate of Parks, No. 05-15-00346-CV, 2016 WL 1085258, at *1 n.1 (Tex. App.—Dallas Mar. 21, 2016, pet. denied) (mem. op.) (discussing repeal of Texas Probate Code and transfer of its provisions into Texas Estates Code).

3.   Because the parties have the same surname, we will refer to them and to the decedent by their first names.

4.   Under the will, Eugene left specified real property, bank accounts, and vehicles to Maria Juana. He also left Maria Juana his residual estate. The will left the estate to Oscar if Maria Juana did not survive Eugene.

5.   Maria Juana testified at trial through an interpreter. She explained that she went to school through the sixth grade. She also testified:Q․ Do you read English?A. Yes, yes, I do read it. I did—I went to school. I went to El Centro College.

6.   The copy of the will admitted into evidence shows two lines of transmittal by facsimile on June 23, 2011. One line shows transmission by Select Bookkeeping & Tax Service at 10:26 a.m. The second line shows transmission by John M. Lozano P.C. at 4:52 p.m. The cover sheet shows that the transmittal from Lozano was to Bufkin.

7.   In any event, Oscar does not complain on appeal of the trial court's failure to file findings and conclusions.

8.   Fonseca addresses a criminal defendant's waiver, through his counsel, of a request for a “licensed” interpreter at his guilty plea hearing. See Fonseca, 163 S.W.3d at 101 (op. on reh'g). Rad addresses the dismissal of a case for want of prosecution. See Rad, 2008 WL 2777320, at *1.


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