In re Estate of Foust, 659 S.W.3d 487 (Tex. App.—Texarkana 2022, no pet. h.).

Estate Administration



The decedent’s son filed his father’s will for probate in Hopkins County where he claimed his dad was domiciled and where he died. Estates Code § 33.001(1) would provide that this county has proper venue. However, the decedent’s wife claimed that venue was in Dallas County because the decedent did not have a fixed place of residence in Hopkins County. Instead, he was in an assisted living center and the majority of his property was in Dallas County. Thus, the trial court concluded that under Estates Code § 33.001(2), venue was proper in both Hopkins and Dallas counties. The trial court then transferred the case rejecting the son’s claim that venue should remain in Hopkins County because he filed first. The court also explained that under Estates Code § 33.103(a), transfer is permitted if it is in the best interest of the estate.

The son sought a writ of mandamus which the Texarkana Court of Appeals declined to grant. The son claimed that the trial court abused its discretion in transferring the case for a variety of reasons. The appellate court determined that this was not a proper case for mandamus relief. Mandamus relief is available only if there is a “clear abuse of discretion when there is no adequate remedy by appeal.” Id. at 489, quoting In re Christus Santa Rosa Health Sys., 492 S.W.3d 276,279 (Tex. 2016). The court held that no extraordinary circumstances existed “which might render an ordinary appeal an inadequate remedy.” Id. at 491


Moral:  As the court stated when it quoted In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999), “‘[m]andamus is an extraordinary remedy available only when there is an abuse of discretion and no adequate appellate remedy,’ ‘venue determinations as a rule are not reviewable by mandamus.’”