Orr v. Walker, 438 S.W.3d 766 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
Testatrix died in 1992 and her will was not
probated. In 2006, one of Testatrix’s daughters
(Marguerite) died and her executrix (her daughter, Charlotte) found
Testatrix’s will, told her sister (Mary) about it, and gave a copy to
her uncle (Kenneth) in 2007. After Kenneth died, Mary
filed an application to probate Testatrix’s will in 2012.
Kenneth’s wife (Lucy) opposed the application claiming that Mary
was in default for not timely probating Testatrix’s will.
The trial court agreed and Mary appealed.
The appellate court affirmed.
The court began its analysis by explaining that Mary had the burden of
showing she was not in default in failing to present Testatrix’s will
for probate within four years of her death under Probate Code § 73
[recodified as Estates Code § 256.003]. Lucy claimed
that Marguerite’s failure to probate the will should be imputed to Mary.
The court explained that there is a split of authority between
the courts of appeal regarding whether an heir’s default passes on to
the heir’s successors in interest. However, the court
did not reach this issue holding that the evidence was sufficient to
show that Mary herself was in default by her own inaction to probate
Testatrix’s will.
Mary had knowledge of the will back in 2006 which
is more than four years before she attempted to probate the will.
The court explained that “to maintain the status of
non-defaulting, Mary . . . had to take reasonable actions to timely file
the application after the date of discovery.” Id. at
769. Thus, by waiting more than four years, Mary lost
her status as being not in default even assuming Marguerite’s default is
not imputed to her.
Moral: Once a “stale” will is discovered, a
person who wishes to probate that will should do so in a timely manner.