Will Contests

Joinder of or Notice to Beneficiaries

Wojcik v. Wesolick, 97 S.W.3d 335 (Tex. App.—Houston [14th Dist.] 2003, no pet.).


After Testator’s will was admitted to probate, a will contest was filed because the will physically had holes cut in it suggesting that beneficiaries were literally “cut out” of the will. In addition, one of the beneficiary’s names was in a different color ink perhaps indicating it was added by someone other than the Testator. Testator’s estate asserts that Probate Code § 93 precludes the will contest because the contestants did not join all of the beneficiaries of the will within two years of the admission of the will to probate and that the beneficiaries are necessary and indispensable parties under Texas Rule of Civil Procedure 39. The trial court agreed.

The appellate court reversed. The court examined Probate Code § 93 and held that this section does not require joinder of all interested persons in a will contest. The Code does not expressly provide that will contestants must join or give notice of the will contest to any party. In addition, Rule 39 is not applicable because it conflicts with the unambiguous language of the Probate Code. (Note that the vast majority of states do require that will contestants give notice to interested parties.)

Note that this decision is in conflict with cases from two other districts. See Kotz v. Kotz, 613 S.W.2d 760, 761 (Tex. Civ. App.—Beaumont 1981, no writ), and Jennings v. Srp, 521 S.W.2d 326, 328-29 (Tex. Civ. App.—Corpus Christi 1975, no writ).

Moral: Will contestants may not need to join or give notice to will beneficiaries. However, due to the split of authority, prudent practice may be to give the notice even though it may not be necessary.