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Ray v. McMaster

Although the wills show the spouses have an agreement to be contractually bound, that reference is insufficient under �59A(a)(2) of the Probate Code because the will must state more than the fact that a contract exists; it must state the material provisions of the contract. Houston Court of Appeals, No. 01-08-00214-CV, 09-17-2009

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OPINION ON REHEARING

Appellee, Ronald Lee McMaster, has filed a motion for rehearing and for en banc reconsideration of our opinion issued on June 18, 2009. We withdraw our opinion and judgment of June 18, 2009 and substitute this opinion and judgment in their place. Because we issue a new opinion in connection with the denial of rehearing, McMaster’s motion for en banc reconsideration of our prior opinion is moot. Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 472 (Tex. App.–Houston [1st Dist.] 2006, pet. denied).

Appellant, Mary Rochene Ray, appeals from the trial court’s summary judgment in favor of McMaster. The trial court determined that, as a matter of law, the 1992 wills of Ernest and Velma Alley were contractual and that McMaster was the beneficiary. In three issues, Ray contends the trial court erred by determining the wills were contractual wills. Ray asserts the wills fail to meet the requirements of the Probate Code in that they do not describe the material provisions of the contract. Alternatively, Ray claims the wills fail to meet the two common law requirements for contractual wills in that the wills grant a fee simple estate and do not provide for a plan of distribution that treats the estates as one estate. We conclude the wills are not contractual wills because they fail to meet the requirements of the Probate Code. Therefore, after Velma’s death, Ernest could properly bequeath his property to Ray instead of McMaster. We reverse and render judgment in favor of Ray.

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