Brown v. Traylor,
Necessity of Expert Testimony to Establish
The jury found that Executrix acted in good faith and with
just cause in defending Testator’s will and determined the amount which would
fairly and reasonably compensate her for the necessary and reasonable attorney’s
fees. Accordingly, the trial court awarded attorney’s fees under
The appellate court reviewed the evidence and found that it did not support the reasonableness or necessity of the fees. There was no expert testimony regarding the time and labor required, the skill required to perform the legal services, the customary fee for similar services, the results obtained, the experience, reputation, and ability of the attorney, and so forth. Instead, the evidence merely established what legal services were performed and how much the Executrix’s attorney charged for those services. Accordingly, the court determined that the evidence was legally insufficient to support the jury’s award of attorney’s fees.
Moral: A person seeking attorney’s fees must present expert testimony regarding the reasonableness and necessity of the fees which addresses relevant factors such as those detailed in Texas Disciplinary Rule of Professional Conduct 1.04. Evidence of the fees charged and services rendered is insufficient to support an award of attorney’s fees.
Contestant complained that the trial court improperly
rejected a jury instruction which stated that the will witnesses must know that
the document being attested is a will. The appellate court, consistent with
long-established Texas law (e.g.,
Moral: Although the witnesses do not need to know
they are witnessing a will for the will to be valid, it is nonetheless a wise
practice as it will enhance the testimony of the witnesses. In addition, the
witnesses must swear that the testator “declared to them the said instrument is
his last will and testament” as part of the self-proving affidavit under
One of the witnesses to Testator’s will was also a beneficiary making that witness not a credible witness to establish the will. However, there were three other witnesses who were disinterested and thus the beneficiary status of this “unnecessary” witness was irrelevant.
Moral: A will beneficiary should not serve as an attesting witness.
Contents Proved Properly
Testator’s original will was unavailable for probate. The trial court determined that the evidence was sufficient to establish the will under Probate Code § 85 and the appellate court agreed. There was testimony from a person who read the original will who attested that a copy of the will which was admitted into evidence was an accurate copy. The court also determined that the evidence adequately established the cause of non-production and that Testator had not revoked the will.
Moral: The original will should be carefully stored so that the original is available for probate.