Gomez Acosta v. Falvey, 594 S.W.3d 386 (Tex. App.—El Paso 2019, no pet. h.).
In 1984, Attorney filed a small estate affidavit stating that the sole heir was the decedent’s spouse. In 2015, the decedent’s descendants sued Attorney for filing a false small estate affidavit alleging that Attorney knew that the decedent had children who would also be heirs to his estate. The trial and appellate courts agreed that the claim of the decedent’s descendants was barred by the statute of limitations. The court explained that the evidence showed that the small estate was on public record and that several of the descendants had examined it decades previously.
The court rejected the descendant’s claims the limitations was tolled by the doctrine of fraudulent concealment or the discovery rule. The evidence showed that a descendant was aware of the contents of the small estate affidavit back in 1986 and thought that something was not right about it. Had the descendant exercised reasonable diligence, such as by consulting with a lawyer with estate expertise, the error would have been readily discovered. The fact that she did consult with attorneys who were unable to assist her was not enough to show she exercised due diligence. The evidence also revealed that none of the other descendants exercised any diligence at all in pursing any claim they might have had. The court next determined that the discovery rule could not, even at its most liberal application, extend the accrual of the cause of action beyond 1994.
Moral: When an error in a small estate affidavit is discovered, an action to correct it needs to be brought in a timely fashion.