In Estate of Romo, 503 S.W.3d 672 (Tex. App.—El Paso 2016, no pet.).
Contestants claimed that a will previously admitted
to probate was invalid because the testator lacked testamentary capacity
or executed the will when subjected to undue influence. After testimony
at the trial that the witnesses did not attest in the testator’s
presence as required by Estates Code § 251.051(3), the court granted
contestant’s motion for a directed verdict that the will was invalid.
The appellate court affirmed. The court explained
that only a will which meets all Texas requirements may be admitted to
probate. It was irrelevant that the trial was centered around two other
grounds for finding the will to be invalid.
Moral: A court may set aside a will for
failure to comply with the requirements of a valid will even if the
contestant does not raise that ground in the pleadings.