In Estate of Wynn, William Reese Wynn, Sr. died in 2021, leaving a will from 2003 that primarily benefited his wife Susan. No. 10-23-00187-CV, 2025 Tex. App. LEXIS 9682 (Tex. App.—Waco December 18, 2025, no pet. history). The will included $25,000 bequests to each of his two children from a previous marriage. The will contained an in terrorem clause revoking any bequest to a beneficiary who contested the will. The children (Carol and William Jr.) contested the will, claiming page three was forged or altered. The contestants provided declarations stating they were familiar with their father’s handwriting and that the initials on page three were not his.
The executrix filed an answer and also asserted a counterclaim for a declaratory judgment that the contestants violated the terms of the will’s in terrorem clause. The executrix then filed a no-evidence motion for partial summary judgment on the grounds that there was no evidence to support the contestants’ claim that the will had been forged or altered between its execution and its admission to probate. The executrix also filed a traditional motion for partial summary judgment on the contestants’ declaratory-judgment action to construe the will. In her traditional motion, the executrix argued that the decedent unambiguously devised his entire residuary estate to her in the will. The executrix contended that the contestants had no claim to the decedent’s estate as intestate heirs and that, accordingly, their claims premised on their ownership of the decedent’s property as his intestate heirs have no basis in law or in fact. She also filed a motion to exclude expert testimony.
The contestants filed a combined response and their summary-judgment evidence consisted of the experts’ declarations, the contestants’ own declarations, and the transcript of the executrix’s deposition. The trial court granted the executrix’s motions for summary judgment and motion to exclude the expert testimony. The executrix then filed a motion to declare the in terrorem clause triggered, which the trial court granted. The contestants appealed.
The court of appeals first discussed the exclusion of the contestants’ own declarations:
Texas Rule of Civil Procedure 166a(f) provides: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Pursuant to Texas Rule of Evidence 701, lay witness opinion testimony is admissible if it is “(a) rationally based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue.” Furthermore, Texas Rule of Evidence 901(b)(2) specifically permits a lay witness to provide an “opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.”
Here, to support their lay opinions that the initials at the bottom of the third page of the Will were not in the decedent’s handwriting, the Contestants provided in their declarations a detailed factual explanation of how they had personally witnessed the decedent’s handwriting throughout their lives, including observing his handwriting both around the time that the Will was purportedly signed and during his later years. The Contestants stated in their declarations that they not only saw the decedent’s signature on documents that were known to have been signed by him but also observed the decedent write his signature on documents. The Contestants then explained in their declarations that the foregoing was how they became “familiar with the manner and style” of the decedent’s handwriting. And because they are familiar with the manner and style of the decedent’s handwriting, the Contestants observed that the initials at the bottom of the third page of the Will are not the decedent’s handwritten initials in his handwriting.
A statement is only conclusory if it does not provide the underlying facts to support the conclusion. Here, even though the Contestants did not provide in their declarations a technical explanation of how the initials at the bottom of the third page of the Will differ from the decedent’s handwriting, the Contestants did provide the underlying facts to support their lay opinions that the initials at the bottom of the third page of the Will are not the decedent’s handwritten initials in his handwriting. The Contestants’ declarations are therefore distinguishable from the declaration in Edwards and are not conclusory. We thus conclude that the trial court abused its discretion in sustaining the Executrix’s objections to the Contestants’ own declarations and in, consequently, excluding the declarations as summary-judgment evidence.
Id. The court of appeals then reversed the executrix’s summary judgment motions on the forgery issue because their declarations created a fact issue:
In a proceeding to admit a will to probate, the will proponent bears the initial burden of proof of showing that the will was properly executed and that the testator had testamentary capacity at the time of execution. The will proponent may make out a prima facie case on these issues by introducing a self-proved will into evidence. After a will is admitted to probate, as here, a will contestant has the burden of establishing that the will is invalid. A will may be cancelled for forgery or other fraud...
“Forge” means: to alter, make, complete, execute, or authenticate any writing so that it purports: (i) to be the act of another who did not authorize that act; (ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or (iii) to be a copy of an original when no such original existed[.]
Proper lay testimony can raise a fact issue on forgery. Here, as explained more fully above, the Contestants provided in their own declarations that they are familiar with the manner and style of the decedent’s handwriting and that they observed that the initials at the bottom of the third page of the Will are not the decedent’s handwritten initials in his handwriting... We accordingly conclude that the trial court erred in granting the Executrix’s no-evidence motion for partial summary judgment.
Id. The court of appeals then reversed the summary judgment order on the in terrorem clause:
An in terrorem clause in a will typically makes the gifts in the instrument conditional on the beneficiary not challenging or disputing the validity of the instrument. In terrorem clauses are designed to dissuade beneficiaries from filing vexatious litigation, particularly as among family members, that might thwart the intent of the grantor. Subsection 254.005(a) of the Estates Code provides:
A provision in a will that would cause a forfeiture of or void a devise or provision in favor of a person for bringing any court action, including contesting a will, is enforceable unless in a court action determining whether the forfeiture clause should be enforced, the person who brought the action contrary to the forfeiture clause establishes by a preponderance of the evidence that: (1) just cause existed for bringing the action; and (2) the action was brought and maintained in good faith.
In general, “the term ‘just cause’ contains an essential element of reasonable factual grounds that may be fairly applied to the legal action at issue.” “For an action to be brought with just cause, factual grounds in support of the action must exist and be presented, and those grounds must be reasonably applicable to the proffered legal basis relied upon.”...
We assume without deciding that the Executrix established as a matter of law that the foregoing [in terrorem] provision, if enforceable, “would cause a forfeiture of or void a devise or provision in favor of” the Contestants for bringing their forgery/alteration claims. Even so, however, we concluded above that the Contestants presented evidence raising a genuine issue of material fact regarding whether the Will that was admitted to probate was forged and that the trial court therefore erred in granting the Executrix’s no-evidence motion for partial summary judgment. Accordingly, a genuine issue of material fact exists regarding whether the Contestants had “just cause” for bringing their forgery/alteration claims. For these reasons, we conclude that the Executrix did not meet her summary-judgment burden of establishing that no genuine issue of material fact existed and that she was entitled to judgment as a matter of law on her counterclaim for a declaratory judgment that the Contestants violated the terms of the Will’s in terrorem clause and forfeited any devise under the Will.
Id. The court of appeals reversed the trial court’s judgment and remanded for further proceedings.