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Click here for the full text of this decision FACTS:Viola Conner Trawick died in 2000 at the age of 94. She left a self-proving will, executed in March 1998, naming her niece, Reva Risinger, as independent executor and as sole beneficiary of her estate. The will was admitted to probate 25 days after Trawick’s death. Seven months later, nine of Trawick’s grandchildren filed a will contest, arguing that Risinger exercised undue influence on Trawick, or, alternatively, that Trawick lacked testamentary capacity. The case went to trial. At least 18 people testified for the grandchildren, from the grandchildren themselves to Trawick’s hairdresser, her friends and her home healthcare worker, to local merchants, her tenant, a police officer and other extended family. These witnesses discussed instances where Trawick appeared confused or where she didn’t recognize people or understand what was going on. They referred to her grief over, and her inability to accept, her daughter’s death. Trawick’s tenant testified that Risinger had him pay his rent to her because Trawick was “not real competent with herself.” Five witnesses testified for Risinger, including: Risinger, a friend Trawick played dominoes with, a church acquaintance, and a bank employee. They described Trawick as lucid and of general sound mind. The fifth witness for Risinger was an expert, Dr. Ted LeDet, who described his dealings with Trawick since he met her in 1994. He believed that Trawick was still aware of her surroundings in 1998, and that it wasn’t until February 2000 that she started to act combative and confused. He began treating her for “sundown syndrome” at this time. LeDet’s deposition had been taken earlier, but the will contestants did not file any pretrial objections to his qualifications or his testimony. The grandchildren objected to LeDet’s qualifications as he began his testimony at trial. They asked the trial court to let them conduct voir dire on LeDet to discuss his qualifications, but the objection was denied, because the request was premature. After LeDet testified and Risinger rested her case, the grandchildren made a motion to strike LeDet’s testimony, which was denied. When the evidence closed, the trial court granted Risinger’s objection to the plan to submit the issue of undue influence to the jury. The jury then found that Trawick had testamentary capacity when she executed the will in March 1998. The jury awarded Risinger attorneys’ fees, too. On appeal, the grandchildren insist that the trial court should have let them voir dire LeDet. They also insist that the evidence does not support the jury’s finding that Trawick possessed testamentary capacity to execute her will. HOLDING:Affirmed. The court acknowledges that Texas Rules of Evidence 705(b) and (c) allow voir dire inquiry into the underlying facts of data upon which an expert’s opinion is based. The court points out, however, that the grandchildren were not going to inquire into the underlying facts or data. Even if they were, voir dire under this rule is still discretionary in civil cases. Furthermore, the trial court merely said that voir dire was premature at the time the grandchildren raised it. The will contestants did not raise the issue again, however, and made no objections to LeDet’s subsequent testimony on direct examination about his medical-training qualifications. Even when the contestants cross-examined LeDet, they did not ask any questions about his qualifications. Consequently, the motion they made after LeDet completed his testimony and Risinger rested her case came too late, and the complaint was waived. Turning to the sufficiency of the evidence, the court summarizes the testimony of all of the witnesses on the subject of Trawick’s testamentary capacity. While some of the contestants’ evidence did show Trawick to exhibit “senile, eccentric, and even bizarre” behavior, the court finds no evidence that any of this behavior was persistent or that she was acting similarly when she executed her will. The court adds that some of the witnesses acknowledged that Trawick had good days and that she had the requisite mental capacity to sign another will and a power of attorney only a few months before she signed the will at issue here. The evidence was thus sufficient to support the jury’s finding, the court concludes. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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