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Click here for the full text of this decision FACTS:On Oct. 23, 2002, Mary Ellen Logan Bendtsen executed a will leaving her entire estate to her only child Frances Giron and naming Giron the executrix of her estate. On Feb. 22, 2005, Bendtsen suffered a stroke and was taken to the hospital emergency room. Bendtsen’s attorney prepared a will for her naming Dixie L.M. Tidwell executrix and leaving one chair to Giron, her jewelry to Beatrice Grayson (except for one brooch left to Rose Cline), and the remainder of her estate � which included an old and large but dilapidated house on Dallas’ historic Swiss Avenue � to her “dear friends” Justin Burgess and Mark McCay. Bendtsen executed the will in the presence of witnesses Tidwell and Cline. Their attempted attestation as witnesses, however, was the subject of the parties’ dispute. Despite the statements to the contrary, the trial court found that Tidwell did not sign the will in Bendtsen’s presence and neither did the notary who signed the instrument. At trial, the witnesses testified to the manner in which the will was executed. Bendtsen signed the will in Tidwell’s and Cline’s presence while Tidwell filmed her signing. Then Tidwell put down the camera and wrote her name and Cline’s name in the blanks in the testimonium clause. Cline then signed below the attestation clause. Tidwell and Cline then took the will to the notary’s house where Tidwell signed below the attestation clause in the notary’s presence but outside Bendtsen’s presence. Cline signed the notary’s book, and the notary confirmed that Cline’s signature in the book matched the signature below the attestation clause. Texas Probate Code �59 sets forth the requisites for a valid will. The relevant portion of that provision states: “Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator.” Giron moved for traditional and no-evidence summary judgment, asserting the will did not meet the requisites because Tidwell did not sign the attestation clause in Bendtsen’s presence. Giron also moved for no-evidence summary judgment asserting Tidwell had no evidence Bendtsen signed with the necessary testamentary capacity and intent. At the hearing on the motion for summary judgment, the trial court observed that the time for written discovery had passed but the time for depositions was still ongoing. The court initially determined it would reach the traditional summary judgment grounds, which concerned whether the statutory requisites for the will were met but that it would not reach the no-evidence issues. At the close of the summary judgment hearing, the trial court announced it granted summary judgment on the traditional grounds and on the one no-evidence ground that concerned whether the requisites were met. The court ordered the 2005 will set aside and admitted the 2002 will to probate. HOLDING:Affirmed. In this case, the record shows Tidwell objected to going forward on the no-evidence grounds, because she needed more time to depose expert witnesses concerning Bendtsen’s testamentary capacity. But Tidwell, the court stated, did not tell the court she needed more time to prepare for the grounds concerning the execution of the will. The trial court, the court stated, could reasonably have concluded that Tidwell was ready to proceed on all the grounds concerning the execution of the will and that the only grounds on which she was not ready to proceed were the no-evidence grounds concerning testamentary intent and capacity. Thus, the court found no indication that the trial court’s action in proceeding to decide the no-evidence ground concerning the requisites of the will harmed Tidwell. The court also concluded that the trial court did not abuse its discretion in denying Tidwell’s Sept. 12, 2005, motion to modify, correct or reform the judgment, and motion for new trial, concerning whether the trial court erred in granting the no-evidence summary judgment ground on the basis that the will was improperly executed. In her third issue, Tidwell asserted that the trial court erred by including a “Mother-Hubbard” clause in the judgment, because it foreclosed Tidwell from seeking compensation under Texas Probate Code �243 for her expenses and reasonable attorneys’ fees. In her fourth issue, Tidwell asserted the trial court erred in ruling on Feb. 12, 2006, that it lacked jurisdiction to correct judicial error in the Aug. 12, 2005, judgment and that it lacked jurisdiction over Tidwell’s Dec. 22, 2005, motion. The court found that Tidwell waived those issues by failing to timely file the Dec. 22, 2005, motion. OPINION:Mazzant, J.; O’Neill, FitzGerald and Mazzant, JJ.

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