In re Estate of Aguilar, 2013 WL 520282 (Tex. App.—San Antonio 2013, no pet.).


Estate Administration

Bill of Review


Son One probated Father’s will as a muniment of title.  Seven months later, Son Two attempted to set aside the probate by filing an equitable bill of review (not a statutory bill of review under Probate Code § 31). Both the trial and appellate courts denied the application.


The appellate court explained that to obtain an equitable bill of review,


the applicant must plead and prove: (1) a meritorious defense to the underlying cause of action, (2) which the applicant was prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on its own part.


Son Two attempted to rely on a special situation where absence of service or lack of notice of the dispositive trial setting acts to relieve the applicant from showing the normal elements for an equitable bill of review.  The court rejected this argument because the evidence showed that Son One gave proper notice of the muniment of title action by posting as required by Probate Code § 128(a).  (This notice also demonstrates that element two was not satisfied.)


Moral:  A party seeking an equitable bill of review must be certain to prove the required elements.