Byerley v. McCulley, 514 S.W.3d 426 (Tex. App.—Tyler 2017, no pet.).
The probate court admitted Testatrix’s will to
probate nineteen years after her death. The court determined that
Applicant was not in default for probating the will within four years of
the date of Testatrix’s death and that service was made by posting. Heir
sought a bill of review asserting that he did not receive sufficient
notice.
The appellate court agreed and granted the bill of
review. Applicant claimed that under the law at the time of Testatrix’s
death, service for a late probate by posting was sufficient. Prob. Code
§ 128(a). Heir asserts that the law applicable when Applicant filed the
will for probate governs which requires service on heirs whose addresses
can be ascertained with reasonable diligence. Est. Code § 258.001.
The court recognized that when the law was changed
to require service in 1999, the legislation contained a savings clause
providing that the change to require service on the heirs upon a late
probate applied only if the person died on or after September 1, 1999.
Prob. Code § 128B. However, when Probate Code § 128B was repealed and
replaced by Estates Code § 258.001, there was no express savings clause.
Because there was no savings clause and the text of § 258.001 does not
limit the applicability of the notice requirements, notice to the heirs
was required. Accordingly, admitting the will to probate after only
notice by posting was a substantial error justifying the issuance of a
bill of review.
Moral: Applicants for a late probate need
to provide notice to the heirs regardless of when the testator died.