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Click here for the full text of this decision FACTS:Alton and Elaine Friesenhahn were husband and wife. In 1996, while married, they each executed wills on the same day. Alton died approximately four years later, and his will was admitted to probate. Elaine filed an application to set apart exempt property and for a family allowance, and an original petition for declaratory judgment naming Alton’s adult children from a prior marriage (“the Friesenhahn children”) as respondents. In her declaratory judgment action, Elaine sought to have the court construe Alton’s will. Specifically, she asked the court to make a determination that the will devised certain real property to Elaine in fee simple and to declare that the real property referred to in the will as the “home at 4597 Stuart Road” included approximately 19 acres of land, as it had been previously described in the final divorce decree dissolving the marriage between Alton and his first wife. The Friesenhahn children filed a general denial in response to the declaratory judgment action. Elaine subsequently filed a motion for summary judgment in her declaratory judgment action, asserting both traditional and no evidence grounds. The trial court denied Elaine’s motion for summary judgment to the extent that it sought a declaration that the will devised the Stuart Road property to Elaine in fee simple. Rather than merely denying Elaine’s request to have the will declared non-contractual as a matter of law, the trial court went further and declared that the wills of Alton and Elaine formed a contract. The trial court denied Elaine’s request for attorneys’ fees and severed the declaratory judgment action from the underlying probate matter, rendering the summary judgment final for purposes of appeal. HOLDING:The court reverses the trial court’s judgment finding that Alton Friesenhahn’s will is a contractual will, renders judgment that Alton’s will conveyed the Stuart Road property to Elaine in fee simple, reverses the trial court’s denial of attorneys’ fees and remands the issue of attorneys’ fees for further proceedings. The trial court’s judgment is affirmed in all other respects. To establish that a will is contractual, a two-prong test must be met. First, the property at issue must not be conveyed to the survivor as an absolute and unconditional gift. Second, the remainder of the estate of the first to die and the estate of the last to die are treated as a single estate following the death of the survivor, which is jointly disposed of by both testators in the secondary dispositive provisions of the will. In the Estate of McFatter, 94 S.W.3d 729, 732-33 (Tex. App. San Antonio 2002, no pet.) Courts have generally found contractual wills where the gift to the surviving spouse is limited to a life estate, the court notes. Here, Alton’s will uses the words, “shall pass to and vest in my wife” and, “hereby devise said real property to her” without any restrictions. The language of Alton’s will does not limit the conveyance of the property to Elaine, and the Friesenhahn children do not direct us to any language in Alton’s will which creates even an implied limitation. Based on the express language of the will and the law’s presumption that an estate in fee simple is devised unless expressly limited, the court holds that Alton’s will conveys the Stuart Road property to Elaine as an absolute and unconditional gift in fee simple. Regarding the second prong, courts generally require that there be some secondary dispositive provisions in the will which direct the distribution of the remaining estates after the death of both the first and last to die, the court states. Alton’s will contains no such provisions. The will does contain a provision for the real property to go to Alton’s children in the event that Elaine predeceased him. This provision simply creates alternate beneficiaries; it does not provide for the disposition of the Stuart Road property after the death of Elaine if Alton was the first to die, the court states. Alton’s will neither refers to any of Elaine’s property nor makes any provision for the disposition of their property after Elaine’s death in the event that she is the last to die. In the absence of any secondary dispositive provisions, the will can not meet the second prong of the test for a contractual will as a matter of law. Because Alton’s will fails to meet either prong of the test to establish a contractual will, Elaine was entitled to summary judgment declaring that Alton’s will is not a contractual will and conveyed the property to her outright, the court concludes. The court remands the issue of attorney’s fees to the trial court for further consideration. OPINION:Phylis J. Speedlin, J.; Stone, Duncan and Speedlin, JJ.

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