Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, April 20, 2019

Texas Supreme Court Allows Probating Will After 4-Year Statute of Limition

CourtThe Texas Supreme Court reversed and remanded the lower courts' decision that the four-year statute of limitations Section 256.003(a) of the Texas Estates Code prevented an executor from probating a foreign will.

After a man and wife #1 divorced, the man married wife #2. The second wife passed away in 2006, and executed a valid will that left everything to the man. The man never probated her will. The man and the first wife must have remained friendly, because when he later passed away in 2015, he left most of his estate to her as well as making her his executor. When the first wife was going through the man's belongings she discovered the non-probated will of the second wife, and offered the will for probate as a muniment of title nine years after the second wife's death in her position as executor of the man's estate.

The children of the second wife, her were thus her intestate heirs, contested the probate of the will on the grounds that it was far beyond the four-year limitations period stated in the Estates Code. They argued that the "default" of probating the will fell on the man, and thus the entering of the will was inappropriate. The first wife argued that the statute applies to the default of the applicant, and that the man was not the applicant in this regard, but rather the first wife who attempted to probate the will. The trial court granted the children's motion for summary judgement, and the appellate court affirmed.

The Court agreed with the lower courts that the first wife was barred from probating the second wife’s will in her capacity as executor because the first wife was standing in the shoes of the husband’s estate. However, the first wife had standing to probate the second wife’s will in her individual capacity as she was the beneficiary of the husband’s estate, who was the beneficiary of the second wife’s estate. The Court ruled that “under Section 256.003(a), when an applicant seeks late-probate of a will in her individual capacity, only the applicant’s conduct is relevant to determining whether she ‘was not in default.’"

See Ferreira v. Butler, No. 17-0901, 2019 Tex. LEXIS 375 (Tex. April 12, 2019).

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.


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