Schindler v. Schindler, 119 S.W.3d 923 (Tex. App.—Dallas 2003, pet. denied).
Testatrix died in 1996 and shortly thereafter her 1987 will was
admitted to probate. In 2001, Proponents attempted to probate
Testatrix’s 1995 will. Both the trial and appellate courts agreed that
Proponents were in default for waiting longer than four years after
Testatrix’s death to probate the will and thus were precluded from so
doing.
The appellate court focused on Probate Code 73(a) which provides that
will must be probated within four years of the date of death unless the
proponent was not “in default.” In this case, Proponents did not know of
the will until after the four year period but Proponents are not
beneficiaries of the will. Instead, they are beneficiaries of an estate
which would have been enhanced by the terms of Testatrix’s 1995 will.
The court explained that the beneficiary of the 1995 will was clearly in
default because he actually was present when Testatrix executed the will
and thus he obviously knew of its existence. The court also indicated
that his death prior to the expiration of the four year period was
irrelevant. The court held that Proponents, as non-beneficiaries, could
not be in a better position than the beneficiary of the will who was in
default.
The court determined that the 1995 will could nonetheless be used to
show that Testatrix revoked her 1987 will. Under the facts, however, the
court agreed that the trial court’s conclusion that Testatrix lacked
capacity to execute the will was supported by the facts.
Moral: Although a will may not be admissible to probate because of a
tardy filing, the will may still be used to show that earlier wills were
revoked.
Schindler v. Schindler, 119 S.W.3d 923 (Tex. App.—Dallas 2003, pet. denied).
First Wife died in 1996 and shortly thereafter her 1987 will was
admitted to probate. Husband remarried and executed a will leaving most
of his property to Second Wife and Son. In 2001, an attempt was made to
probate First Wife’s 1995 will which would have caused a greater share
of First Wife’s estate to pass to Husband and subsequently to Second
Wife and Son. Trustee of a testamentary trust created in First Wife’s
1987 will contested the probate. Both the trial and appellate courts
rejected the claim of Second Wife and Son that Trustee lacked standing
to contest the probate of the 1995 will.
The appellate court examined Probate Code § 10 which gives an interested
person standing to contest a will and the definition of “interested
person” in Probate Code § 3(r) which provides that any person with a
property right in the estate has an interest. Trustee clearly had an
interest because if the 1995 will was admitted, it would have revoked
the 1987 will.
Moral: A trustee of a testamentary trust created in an earlier will has
standing to contest the probate of a later will.