Wojcik v. Wesolick, 97 S.W.3d 335 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
After Testator’s will was admitted to probate, a will contest was
filed because the will physically had holes cut in it suggesting that
beneficiaries were literally “cut out” of the will. In addition, one of
the beneficiary’s names was in a different color ink perhaps indicating
it was added by someone other than the Testator. Testator’s estate
asserts that Probate Code § 93 precludes the will contest because the
contestants did not join all of the beneficiaries of the will within two
years of the admission of the will to probate and that the beneficiaries
are necessary and indispensable parties under Texas Rule of Civil
Procedure 39. The trial court agreed.
The appellate court reversed. The court examined Probate Code § 93 and
held that this section does not require joinder of all interested
persons in a will contest. The Code does not expressly provide that will
contestants must join or give notice of the will contest to any party.
In addition, Rule 39 is not applicable because it conflicts with the
unambiguous language of the Probate Code. (Note that the vast majority
of states do require that will contestants give notice to interested
parties.)
Note that this decision is in conflict with cases from two other
districts. See Kotz v. Kotz, 613 S.W.2d 760, 761 (Tex. Civ.
App.—Beaumont 1981, no writ), and Jennings v. Srp, 521 S.W.2d 326,
328-29 (Tex. Civ. App.—Corpus Christi 1975, no writ).
Moral: Will contestants may not need to join or give notice to will
beneficiaries. However, due to the split of authority, prudent practice
may be to give the notice even though it may not be necessary.