Woods v. Kenner, 501 S.W.3d 185 (Tex. App.—Houston [1st Dist.] 2016, no pet.).


Lost Wills


After Decedent’s death, his two children were declared to be his sole heirs. Thereafter, they sold certain property to Purchaser. Later, a copy of Decedent’s will was located which devised his property to his two children and his two step-children. The court admitted the will to probate as a muniment of title accepting the explanation that the original could not be found because it was destroyed by Hurricane Ike. The court also granted a bill of review setting aside the previous heirship determination.


The appellate court affirmed. First, the court determined that the probate court’s granting of the bill of review was proper rejecting a claim that a petition for a bill of review must make a prima facie showing of a meritorious claim or defense. Instead, all that is necessary is to show substantial error in the prior decision which was the case here because the original order stated that Decedent died intestate which was not the true.


Second, the court determined there was sufficient evidence to support the probate court’s determination that Decedent did not revoke his will and instead that the original was destroyed by the massive flooding of his house which the hurricane caused.


Interestingly, the case does not address Purchaser’s unfortunate situation even though Purchaser was the unsuccessful appellant. Is Purchaser a bona fide purchaser from what at the time of the sale were the legal title holders to the property? If not, would title insurance cover Purchaser’s loss of 50% of the property? Will title insurance companies now refuse to insure sales from heirs at least until the time to file a bill of review has run fearing that a later will may be found?


Moral:  Heirs should conduct a thorough search for a decedent’s will. Of course, they may lack the motivation to do so because the will could disinherit them partially, as in this case, or totally.