Estate of Fisher, 421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.).


Estate Administration



After Testator’s will was filed for probate, Contestant claimed the will was the product of undue influence.  The trial court determined there was no evidence of undue influence and issued a partial no-evidence summary judgment against Contestant.  Contestant then filed an accelerated permissive appeal under Civil Practice & Remedies Code § 51.014(d).


The appellate court held that it lacked jurisdiction and thus dismissed the permissive appeal.  The court began its analysis by recognizing that the summary judgment was an interlocutory order and thus not appealable unless the special accelerated permissive appeal provision applies.  The court explained that the procedure requires that the order involve a “controlling question of law.”  In this case, the controlling issue was fact-based, that is, whether undue influence was exerted.  Accordingly, Contestant will have to wait and appeal a later order such as an order admitting the will to probate.


Moral:  A party seeking an accelerated permissive appeal needs to have a claim that a controlling issue of law was improperly decided and not a mere disagreement about fact-finding.