Boone v. LeGalley, 29 S.W.3d 614 (Tex. App.—Waco 2000, no pet.).
The county court entertained Proponent’s application to probate Testator’s will and admitted the will to probate. Contestants allege that Proponent lacked standing to probate Testator’s will. The appellate court found that the county court erred by not conducting a separate hearing on the issue of standing in limine before hearing the merits of the will contest.
Moral: Whenever a person challenges a will proponent’s standing to
probate a will, the probate court must conduct a separate hearing on the
issue in limine.
Boone v. LeGalley, 29 S.W.3d 614 (Tex. App.—Waco 2000, no pet.).
The named primary and alternate independent executors filed affidavits declaring their unwillingness to serve. The court later appointed one of the devisees as the independent executrix. Although the case was reversed on another ground, the appellate court in dicta declared that the court’s action was improper. Prob. Code § 145(d) permits the court to appoint an independent executor only if all of the distributees of the decedent agree and collectively designate a qualified person as the independent administrator. Because the record contained no evidence that the devisees collectively agreed to having the devisee appointed, the court lacked authority to make the appointment.
Moral: If the designated independent executors are unwilling to serve,
be certain to obtain the proper consent and agreement of the devisees to
a substitute independent executor.