In two cases where wills were offered for probate more than two years after a prior probate judgment, one court held that the second will could be admitted to probate and the other court held that it could not. What is the difference?
In the first case, an older (1965) will was admitted to probate. More than two years later, a newer will (1968) was offered for probate. The appeals court ruled that the 1968 will should be admitted even though it was offered more than two years after the 1965 will had been admitted to probate. The court relied on §73 which requires that a will has to be filed within four years of the death of the testator. The court said that filing the new will was not a direct attack on the fist judgment which would be barred by the two year limitation period of §93 but was a process of filing a newer will within four years which was allowed by §73. Morris, 577 S.W.2d 748.
In the second case, no will was found. A probate was filed seeking a determination of heirship and the appointment of an independent administrator. More than two years after the determination of heirship and the appointment of the independent administrator, a will was filed for probate. The appeals court ruled that the will was filed more than two years after the probate judgment, was a direct attack on the judgment and was therefore barred by the two year limitation period. The court distinguished the first case by saying that in the first case, the second will revoked the first will but here in the second case, there was no will to revoke. Therefore, it reasoned, the second will could not be filed after two years from the original probate court judgment. Rogers, No. 08-09-00249-CV, El Paso.
Differences In The Two Cases
While the two cases seem to go in different directions, it should be noted that the ruling in both cases favored the children over the husband (first case) and the family over friends (second case.) Many rulings in probate matters seem to prefer the closer relatives over the distant relatives or the family over strangers.
For The Limited Purpose of Revoking a Will
Finally, a will that cannot be admitted to probate because it is filed too late may still be used to revoke a prior will that has been admitted to probate. In a case from the Dallas court of appeals, a will was admitted to probate. After the time for admitting wills to probate (in this case, four years after the death of the testator) several relatives offered a newer holographic will (actually four holographic will) that revoked the will admitted to probate. The trial court admitted the holographic will(s) for the limited purpose of revoking the will previously admitted to probate. The trial court held that the holographic will was filed too late to get it probated. The court voided the previous probate because the will had been revoked. The effect of the ruling was that the decedent died intestate (without a will.) 542 sw2d 901.
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By Robert Ray a Board Certified attorney. The foregoing information is general in nature and does not apply to every fact situation. We handle litigation involving inheritance disputes. We don’t prepare wills. We don’t file wills for probate or distribute estates except when we are contesting a will or protecting a will from a contest. We handle a select few cases on contingency. Don’t use a comment to ask a personal question about an inheritance issue because your name and comment will be public. To ask a litigation question and to protect your privacy, click the red button to the right.