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