In re Graham, 251 S.W.3d 844 (Tex. App.—Austin 2008, no pet.).

Estate Administration

Venue

 

Decedent was domiciled in Travis County at the time of her death. Probate Code § 6 provides that venue is mandatory in the county where the deceased resided if the deceased has a domicile of fixed place of residence in Texas. Nonetheless, Decedent’s will was filed for probate in Tom Green County and the applicants swore that Decedent was domiciled in Tom Green County. The court believed the applicants and the will was admitted to probate in Tom Green County. When subsequent litigation occurred, one of the applicants moved to transfer the case to Travis County because Decedent was domiciled there at the time of death. The trial court denied the motion and the applicant requesting the transfer sought a writ of mandamus to compel the transfer.

The appellate court agreed with the applicant and conditionally granted the writ of mandamus. The court rejected arguments that the motion to transfer was partial or was a collateral attack. Instead, it was a motion to transfer the entire probate case and thus was a direct challenge to the venue determination made in the order admitting the will to probate. The court also rejected the argument that under Probate Code § 8(c)(1), the court could not transfer the case for want of venue because the order admitting the will to probate was a final decree. The explained that an order admitting a will to probate is not a final decree.

The court noted that although one of applicants had originally signed the Proof of Death swearing that Decedent was domiciled in Travis County, such action did not act as a judicial admission as this applicant was not a party to the proceeding at the time he made the statement. In addition, a statement about a person’s domicile is a legal conclusion which a non-attorney is unskilled to make and he did not have legal counsel when he made the statement.

Finally, the court conducted a careful review of the evidence regarding domicile and determined that “[t]he evidence that [Decedent] slept, gardened, entertained guests, stored her personal possessions, and generally conducted day-to-day activities in Travis County conclusively establishes residence in fact and intent to the make the residence her home.” In re Graham at 851.

A dissenting judge believed that there was sufficient evidence to support the trial court’s determination that venue was in Tom Green County, especially because the applicant’s motion came 1.5 years after the court admitted the will to probate and only because litigation had erupted between the original applicants.

Moral: Probate Code § 6 is a mandatory venue provision and thus it is essential to bring probate actions in the correct county to reduce the likelihood of later procedural disputes based on lack of venue.



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