Fort Worth’s Second Court of Appeals has validated a will that was drafted by an attorney in an unusual manner—his client was a quadriplegic, unable to speak and could communicate with the lawyer only by blinking “yes” or “no” to questions.
The case, dubbed by the court as “the case of the blinking testator,” focused on the will left by Michael Lynn Luce, who was severely injured on Oct. 11, 2015, when he was involved in an ATV accident that left him paralyzed.
Medical records indicated that his accident had not caused any brain or head injuries, and upon admission to the hospital, he made it clear to the staff that he was going through a divorce and did not want his wife, GayeLynne Luce, to make any decisions for him, according to the decision.
On Oct. 18, 2015, Michael went into respiratory failure and was intubated, leaving him unable to speak, yet he was still alert and oriented as to person, place and time, the court said. Later that day, attorney Kevin Ferrier came to the hospital’s intensive-care unit to meet with Michael about making a will.
Ferrier met with Michael alone and determined his wishes through a series of leading questions that Michael answered by blinking his eyes to indicate yes or no. Through this system, Ferrier was able to determine that Michael wanted to revoke all prior wills and wanted to leave his entire estate to his twin daughters, according to the decision.
Ferrier then went to his office, drafted the will in accordance with Michael’s wishes, returned to the hospital to read the will to Michael privately, and then read the will to Michael again in front of a notary and two witnesses. In the presence of Ferrier and the witnesses, the notary signed the will for Michael because he was physically unable. Michael died a month later, on Nov. 26, 2015.
On Dec. 8, 2015, GayeLynne filed an application to probate a 1998 will that bequeathed her Michael’s entire estate. The following month, Michael’s sister, Tina Poole, who was the executor of the 2015 will, filed an application to probate that more recent document.
After a four-day trial, a jury determined that Michael had testamentary capacity to direct the signing of the 2015 will, that he did not sign that will because of undue influence, that the 2015 will revoked the 1998 will, and that GayeLynne did not act in good faith and with just cause in prosecuting her suit for the purpose of defending and having the 1998 will admitted to probate.
A year later, another trial judge who did not preside over the trial determined that GayeLynne was entitled to attorney fees under the Texas Estate Code, and awarded her $200,000 in fees and expenses.
Both GayeLynne and Tina Poole appealed the decision to the Second Court—GayeLynne arguing that the evidence in the case was legally insufficient to prove that the 2015 will was valid, and Tina objecting to the trial court awarding GayeLynne $200,000 in attorney fees.
In their decision, the Second Court ruled that Michael’s will was indeed valid.
“Even though Michael was seriously injured in the ATV accident, he did not suffer any head or brain trauma,” wrote Justice Elizabeth Kerr. “Ferrier testified extensively regarding the steps he took using the blinking system to ensure that Michael wanted to execute the 2015 will, that the will disposed of Michael’s property in accordance with his wishes, and that he understood the will’s provisions.”
However, the court ruled that the trial court had erred by disregarding the jury’s good cause finding against GayeLynne, and reversed the order awarding her $200,000 in attorney fees.
Georganna Simpson, a Dallas attorney who represented Poole, the executor of the 2015 will, was pleased with the decision—a ruling she said was made easier by the actions Ferrier took to make sure the document would survive appellate review despite the fact his client could not speak.
“If you want to lay out how you do it in this situation, he did it. He did it so it would stand up. He did such a great job,’’ Simpson said of Ferrier. “He should be able to give a primer on how do it when you’re in this situation.’’
Thomas Michel, a Fort Worth attorney who represents GayeLynne, did not return a call for comment.
Ferrier, a Tyler attorney who was called to the East Texas hospital where Michael was treated, said he did his best to craft a defensible will under difficult conditions.
“This was a very unusual situation, but I’ve done wills in hospice and wills in hospitals before,” Ferrier said. “A lot of people don’t want to think about it until there’s an end-of-life situation. But this was pretty unusual—you don’t have that happen every day.’’