Stovall v. Mohler, 100 S.W.3d 424 (Tex. App.—San Antonio 2002, pet. denied).
Decedent died in 1996. On March 24, 1997, a document purporting to be
Decedent’s 1993 will was admitted to probate. Daughter contested the
will asserting that it was a forgery and that an earlier will, from 1986
or 1989, should be probated instead. Granddaughter was joined as a party
and later non-suited from the case. On February 22, 1999, the court
determined that the will was a forgery and that the other two wills did
not exist. Accordingly, Decedent died intestate.
In 2000, Granddaughter filed an application to probate the 1986 will or,
in the alternative, the 1989 will. Daughter obtained a summary judgment
that Granddaughter’s action was precluded as a matter of law under
Probate Code §§ 73 & 93. Granddaughter appealed.
The appellate court affirmed. Granddaughter argued that the two year
period to contest a will found in Probate Code § 93 did not apply
because the 1993 will was not actually admitted to probate because it
was later found to be a forgery. The court rejected this argument and
determined that the language in § 93 which provides that the limitations
runs “after a will has been admitted to probate” applied because the
1993 will was technically admitted to probate even though it was later
found to be invalid. The fact that the 1993 was later determined to be a
forgery did not negate the fact that it was initially admitted to
probate.
Moral: A will proponent should timely (within two years) attempt to
probate a will if the proponent is dissatisfied that another will has
already been admitted to probate.