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