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Click here for the full text of this decision FACTS:In April 2001, Stephen Ellis Alexander, Cheryl Alexander and Deborah Alexander each received a substantial inheritance when their paternal grandmother died. According to the terms of a testamentary trust established by their paternal grandfather in his will, they were each to receive: 1. monthly payments of the net income from their portion of the corpus; 2. partial distributions at the ages of 25 (one-third of the corpus) and 30 (one-half of the remainder); and 3. a final distribution at the age of 35. Stephen consulted with an attorney regarding the need to prepare a will. They discussed the matter on several occasions but no will was ever executed. Stephen suffered from several chronic conditions and was hospitalized at the Veterans Administration Medical Center in Temple from June 18, 2002, to July 8, 2002, for complications associated with these conditions, exacerbated by alcohol abuse. He allegedly made the nuncupative will on July 4, 2002, while hospitalized in Temple. According to the affidavits of several friends, Stephen was taken to the VA hospital in Waco for a few days sometime after his release from the VA hospital in Temple, because he was retaining fluids. “The staff drained some fluids, but finally sent him home because they could do nothing else for his condition.” Stephen was taken by ambulance to another Waco hospital on July 24 due to extreme intoxication. He died two days later. Cheryl filed an application to determine heirship and for an independent administration of Stephen’s estate in the constitutional county court of McLennan County. Cheryl supported this application with affidavits of heirship executed by herself, Deborah, Ben C. Lambeth and another person, each of whom affirmed that the Cheryl and Deborah were Stephen’s sole heirs and that he had died intestate. The probate court approved the independent administration of Stephen’s estate, granted letters of administration to Cheryl and declared Cheryl and Deborah to be Stephen’s sole heirs. Cheryl filed an inventory, appraisement and list of claims for Stephen’s estate which the court approved. Lambeth filed an application to probate Stephen’s alleged nuncupative will a few months later. Cheryl and Deborah answered Lambeth’s suit by denying the existence of a valid nuncupative will. They filed a traditional summary judgment motion and a no-evidence summary judgment motion. The court granted the traditional summary judgment motion and rendered a take-nothing judgment in their favor. HOLDING:Affirmed. Lambeth contended in his second issue that the court erred by granting Cheryl’s and Deborah’s traditional summary-judgment motion, because genuine issues of material fact remained on each element of his claim that Stephen made a nuncupative will. Texas Probate Code �65 states the requisites of a nuncupative will: “No nuncupative will shall be established unless it be made in the time of the last sickness of the deceased, at his home or where he has resided for ten days or more next preceding the date of such will, except when the deceased is taken sick away from home and dies before he returns to such home; nor when the value exceeds Thirty Dollars, unless it be proved by three credible witnesses that the testator called on a person to take notice or bear testimony that such is his will, or words of like import.” Cheryl and Deborah first attacked Lambeth’s claim of a nuncupative will by challenging whether Stephen was “in the time of the last sickness” under �65. A nuncupative will, the court stated, is not valid, unless it be made by a testator when he is “in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will.” The fact that the chronic conditions which afflicted Stephen when he was admitted to the VA hospital in Temple were the very same chronic conditions which substantially contributed to his death 38 days later is no evidence that Stephen was in extremis during his hospitalization in Temple, the court stated. If nuncupative wills, the court stated, can be permitted at all in the cases of chronic disorders, which make silent and slow but sure and fatal approaches, it is only in the very last stage and extremity of them. Viewed in the light most favorable to Lambeth, the court found that the summary judgment evidence conclusively established that Stephen was not in extremis during his hospitalization in Temple. Thus, the court properly granted Cheryl’s and Deborah’s summary judgment motion on the in extremis element of Lambeth’s claim. OPINION:Reyna, J.; Gray, C.J., and Reyna and Vance, JJ.

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