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Brown v. Traylor, 210 S.W.3d 648 (Tex. App.—Houston [1^st Dist.] 2006, no pet. h.).

Estate Administration

Attorney’s Fees

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 Probate Code § 243.

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.

Wills

 Attestation

Publication

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., Davis v. Davis, 45 S.W.2d 240 (Tex. Civ. App.—Beaumont 1931, no writ)), held that the witnesses do not need to know they are witnessing a will.  Probate Code § 59 does not require “that the testator publish to the subscribing witnesses that the document that they are witnessing is [the testator’s] will.”  Brown at 663.

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 Probate Code § 59(a).

Wills

Attestation

Interested Witness

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.

Estate Administration

Lost Wills

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.

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