Evans v. Allen, 358 S.W.3d 358 (Tex. App.—Houston [1st Dist.] 2011, no pet.).



Will Contests

Statute of Limitations


More than two years after the probate of the testator’s will, a beneficiary of an earlier will attempted to contest the will.  The appellate court held that a directed verdict in favor of Executor was proper because the two year statute of limitations under Probate Code § 93 had expired.  The contestant made two arguments, both of which the court rejected.


First, the contestant claimed that the statute of limitations could not start to run until she learned of the existence of the probated will.  Instead, the court held that she had constructive notice because the probate proceedings are on public record.  Accordingly, the statute of limitations began to run on the date the court admitted the will to probate.


Second, the contestant claimed the will proponent was judicially estopped from probating the will because the proponent had admitted that the testator was incapacitated during guardianship proceedings which had occurred prior to the date the testator executed the will.  The court rejected this argument because the standards for incapacity and the standards for testamentary capacity are different and thus the will proponent did not assert inconsistent positions.


The court also noted that a contest for lack of testamentary capacity does not fall within the exception to the two year statute of limitations for “forgery or other fraud” which provides that the two year time period runs from discovery of the forgery or fraud.  Lack of capacity is neither forgery nor fraud.


Moral:  A person who wishes to contest a will for lack of testamentary capacity must do so within two years of when the will is admitted to probate even if the person is unaware of the probate.