## Facts

- C.K. West executed a will and codicil containing attestation clauses and self-proving affidavits reciting due execution.
- The dispositive plan diverted a share otherwise going to West’s daughter, Lorraine, to her former husband, Jackson C. Morris (the will’s proponent), and omitted West’s grandson, Patrick David West.
- West signed the instruments in a conference room in the presence of two subscribing witnesses, Evelyn Cole and Judy Hooker.
- After West signed, the witnesses left West in the conference room, walked down a hallway to a secretarial office, and signed the attestation clauses and self-proving affidavits there; an additional office lay between the conference room and the secretarial office.
- Texas law required that the subscribing witnesses sign “in the presence of the testator.”
- In a prior appeal, the appellate court held that deposition testimony contradicting the attestation clause raised a fact issue on “presence,” requiring trial.
- On remand, a jury trial was held solely on whether the witnesses signed in West’s presence; the jury found they did not.
- The trial court entered judgment denying probate and declaring the will and codicil had no testamentary effect.

## Issues

1. Whether the witnesses’ signing in a separate office within the same suite satisfied, as a matter of law, the requirement that they sign “in the presence of the testator.”
2. Whether the jury’s finding of no “presence” was against the great weight and preponderance of the evidence given the attestation clauses and self-proving affidavits reciting due execution.

## Decision

- The court affirmed the judgment denying probate.
- The court held the evidence did not establish “presence” as a matter of law; the question was properly submitted to the jury.
- The court held the jury’s finding was supported by legally and factually sufficient evidence despite the instruments’ recitals of due execution.
- The will and codicil were properly denied probate and deemed to have no testamentary effect.

## Legal Principles

- A will must be attested by at least two credible witnesses who sign in the presence of the testator.
- Whether witnesses signed “in the presence of the testator” is fact-dependent and may turn on physical layout, lines of sight, and the testator’s ability to perceive the act of signing.
- Attestation clauses and self-proving affidavits constitute prima facie evidence of due execution and support a presumption of proper execution.
- The presumption from attestation and self-proving recitals is rebuttable; conflicting testimony and physical facts can create a jury question and support a finding of improper execution.
- Appellate review of a jury’s resolution of conflicting evidence is deferential; a verdict will stand if supported by legally and factually sufficient evidence.

## Conclusion

The court upheld denial of probate because the jury could reasonably find that the witnesses signed outside the testator’s presence based on the office configuration and testimony, and the instruments’ self-proving and attestation recitals did not conclusively establish proper execution.


Morris v. West's Estate, 643 S.W.2d 204 (Tex. App.—Eastland 1982)