Stoll v. Henderson, 285 S.W.3d 99 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

Estate Administration

Will Contest Statute of Limitations


Testatrix executed a will and codicil. Later, she revoked these documents and executed a will which provided for a significantly different disposition of her property. Subsequently, she revoked this new will.

The probate court admitted Testatrix’s 1993 will and 1994 codicil to probate. Two years and five months later, Contestant attempted to set aside this probate by showing that Testatrix had revoked these documents. The appellate court held that her 1993 will and 1994 codicil were effective to dispose of her property. The court reasoned that Contestant was attempting to contest Testatrix’s will after the two year contest period provided for in Probate Code § 93 and thus the contest was ineffective.

Comment: If the contest had been timely filed, it is likely Contestant’s argument would have succeeded. Texas courts have held that a revocation of a will takes effective immediately and that a revoked will is not revived by the revocation of the prior revocation. See Hawes v. Nicholas, 10 S.W. 558 (Tex. 1889) (“A written declaration, properly executed, as effectually revokes a will from the date of its execution as does its destruction.”). Under these facts, the application of the Texas “no revival” approach would dictate that Testatrix died intestate.

Moral: If a person is dissatisfied that a will is admitted to probate, that person should contest in a timely manner, that is, within the statutorily-mandated time period under Probate Code § 93. Failure to do so will be fatal to even a winning argument.