Estate Administration

Late Probate

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.

 

Wills

Will Contests – Generally

Standing

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.



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