Will Contests – Generally

Procedural Matters

In re Estate of Swanson, 130 S.W.3d 144 (Tex. App.—El Paso 2003, no pet.).


Proponent obtained an order admitting Testatrix’s will to probate as a muniment of title. Later, Contestant challenged the will asserting that Testatrix’s signature was a forgery and that even if the signature was valid, that Testatrix lacked testamentary capacity or was subject to undue influence. Proponent responded by claiming that there was no evidence to support Contestant’s claims. Contestant replied and submitted several affidavits but did not object to the global natural of Proponent’s no-evidence summary judgment motion. The probate court agreed with Proponent and Contestant appealed.

The appellate court reversed. The court began by addressing a procedural issue with regard to the impact of failing to object to a no-evidence motion. The court rejected its earlier holdings and joined with other appellate courts in holding that “even if the nonmovant does not object or respond to a defective no-evidence motion, if it is conclusory, general, or does not state the elements for which there is no evidence, it cannot support the judgment and may be challenged for the first time on appeal.” Swanson at 147.

The court then examined Proponent’s response and agreed with Contestant that the motion contained only global and conclusory statements regarding the lack of evidence of forgery, lack of capacity, and the existence of undue influence. The court also explained that even if the motion was adequate, Contestant presented sufficient evidence of the forgery of Testatrix’s name to withstand a no-evidence motion. For example, Contestant stated that she was familiar with the appearance of Testatrix’s signature and that the signature on the will was not that of Testatrix.

Moral: Will contestants and proponents must not only be familiar with the substantive law of wills, but must also have a firm grasp of the applicable procedural rules.