Estate of Rhoades, 502 S.W.3d 406 (Tex. App.—Fort Worth 2016, pet. denied).





After the probate court set aside an order admitting Testatrix’s will to probate, the court granted a summary judgment construing the dispositive provisions of the will. The appellate court determined that the probate court nonetheless had jurisdiction to construe the will and that its judgment was not merely an advisory opinion.


The court reported that there is “sparse case law” on whether a will must be currently admitted to probate before the court may construe it. However, the court explained that “in practice, Texas courts have construed wills under the [Uniform Declaratory Judgments Act] before, during, and after admitting the will to probate.” Rhoades at *2.


Moral:  Once a proponent presents a will to the court for probate, the court may construe the will even if it is not yet admitted to probate.


Dispositive Provisions


Testatrix’s will devised her (1) “residential homestead” (2) “personal property,” and (3) “all the rest of my estate” to Beneficiary who predeceased Testator. The will provided that if Beneficiary died first, Alternate Beneficiary would receive “his portion” of property. This language is found only in the clause granting the rest of the estate and not in the clauses devising the homestead or bequeathing the personal property. The will also provided for property not otherwise gifted to pass to Testatrix’s Heirs. Alternate Beneficiary claimed she was entitled to the entire estate while Heirs asserted that they should receive the homestead and the personal property with Alternate Beneficiary receiving only the Testator’s non-homestead real property. The appellate court agreed with the latter interpretation as being the only way of harmonizing all of the dispositive provisions. A dissenting justice agreed with the Alternate Beneficiary’s claim that she was entitled to Testatrix’s entire estate.


Moral: A will should be carefully drafted and proofread. Testatrix’s will is an example of very sloppy drafting. For example, in two of the dispositive provisions, the distribution is to be made in “equal shares” even though only one beneficiary is named.