Estate of Flarity, No. 09-19-00089-CV, 2020 WL 5552140 (Tex. App.—Beaumont Sept. 17, 2020, pet. filed).

Will Contest


In attempt to delay or prevent the probate of a self-proved will, the Testatrix’s disfavored child requested discovery of 63 categories of documents covering a period of over 20 years. The will proponents were successful in having the trial court determine that the discovery request was overbroad and the appellate court agreed. The court explained that the discovery request did not deal with the matters relevant to admitting a self-proved will to probate under Estates Code §§ 256.251 & 256.252 (“(1) the testator is dead, (2) the testator died less than four years ago and the Applicants filed the application within four years of the testator's death, (3) the probate court has jurisdiction and venue over the estate, (4) citation has been served and returned in the manner and for the period required by the Estates Code, (5) the proposed administrators of the estate have a right to letters of administrations and are not disqualified, and (6) the testator never revoked the will.”).

Moral:  A will contestant should carefully tailor discovery requests based on the issues which are relevant to the probate of the will.



Self-Proving Affidavit

The validity of a self-proving affidavit was placed in doubt because the notary admitted that she did not give the testatrix and the witnesses an oral oath, just a written one. Both the trial and appellate courts rejected this argument because Estates Code § 251.104 does not require the oath to be oral. Because the Estates Code does not define the term “oath,” the Code Construction Act provision, Government Code § 602.001, applies which provides that the term oath “includes the oath in an affidavit.”

Moral:  Despite the holding in this case, prudent practice is for the notary to orally administer an oath before having the testator and witnesses sign the self-proving affidavit.



Will Contest

Lack of Capacity and Undue Influence

The appellate court agreed with the trial court that it was correct in holding that the testatrix had testamentary capacity and was free from undue influence at the time she executed her will. The contestant’s accusation that the testatrix was suffering from depression was not supported by expert testimony or medical records. The fact that some children received larger shares of the estate because they spent more time with their mother did not show that they exerted undue influence over her.

Moral:  A will contestant needs to present solid evidence of the testator’s lack of capacity or that the testator’s free will was overpowered to succeed in a will contest action.


Estate Administration

Executor Qualification

The appellate court agreed with the trial court that it was appropriate to appoint the executors the testatrix named in her will. The contestant was unable to show any ground enumerated in Estates Code § 304.003 which would disqualify them from being appointed. The court explained that there was no evidence to support even the open-ended “unsuitable” disqualification. For example, merely because one of the executrix’s allowed her son to live in the testatrix’s house for three months while personally paying the utilities did not make her unsuitable. Instead, it was beneficial to preserving the house as an estate asset.

Moral: A person claiming that the court should not have appointed a named executor needs to provide solid evidence to demonstrate a viable reason to overturn the appointment.