Buck v. Estate of Buck, 291 S.W.3d 46 (Tex. App.—Corpus Christi 2009, no pet.).

Estate Administration

Bill of Review


After enduring considerable questionable behavior by a will beneficiary who wanted to overturn the probate of his grandmother’s will and instead probate an alleged later will in which he was named as the sole beneficiary, the trial court sanctioned the grandson by striking his pleadings and imposing other sanctions. The grandson then filed a bill of review to set aside the sanctions and a motion to admit the later will to probate. The trial court denied both motions, the grandson appealed, and the appellate court affirmed.


The court explained that a bill of review is to revise and correct errors, not to set aside a probate court’s orders, decisions, or judgments. The court enumerated the three elements of a bill of review under Probate Code § 31. First, the applicant must be an interested person. The grandson was an interested person because he had a pecuniary interest which was affected by the probate action. Second, the applicant must file the bill of review within two years as the grandson had done. Third, the applicant must prove that the probate court made a substantial error. The crux of this case was whether the probate court made a substantial error.


There are two types of substantial errors. The first type is when the court “acted in direct derogation of a specific, non-discretionary, provision of the probate code.” Buck at 53. The grandson alleged that under Probate Code § 83(a), the court should have considered both probate applications on the merits rather than imposing discovery sanctions which resulted in taking one application out of contention. The appellate court rejected this argument by determining that this provision does not trump discovery rules because to do so would prevent the probate court from sanctioning discovery abuse. The Probate Code does not contain a provision which indicates that § 83 prevails over the Texas Rules of Civil Procedure. Without such a specific mandate, the Civil Procedure rules control.


The second type of substantial error is when the court improperly performs a discretionary act. The grandson alleged that the probate court’s act of dismissing his pleadings, that is, imposing the “death penalty” sanction, was an improper act. The court reviewed the record and concluded that the probate court did not abuse its discretion by acting without reference to guiding rules and principles when it dismissed the grandson’s pleadings.


Moral: A probate litigant should comply with discovery requests to prevent losing a case because of sanctions rather than on the merits.