Missed the 4-Year Mark? When Texas Courts Allow Late Will Probates

Missed the 4-Year Mark? When Texas Courts Allow Late Will Probates

Probating a Texas will after four years.

A will has to be filed for probate within four years of the testator’s death. After four years, a will can be filed as a muniment of title, but only if the person filing the will is not “in default.” When a late-filed will is opposed, the issue is usually concerned with whether or not the person filing the will late was in default.

Probating a will is a process that ensures a person’s belongings go to the right people after they pass away. But sometimes, this process can get tricky, especially if there are delays or misunderstandings in the family. Let’s look at two interesting stories that show why it’s important to follow the rules when dealing with wills.

Story 1: Evelyn’s Will (06-23-00054-CV)

Evelyn passed away on July 20, 2012, and left a will that she made in 2004. Her grandson, Hartwell, was the beneficiary, but he waited until September 19, 2022, to bring the will to court. That’s over ten years later!

Evelyn’s three children—Janie, John, and Jerry—were unhappy about this. They would benefit if the will were denied probate. They said Hartwell should have brought the will to court within four years of Evelyn’s death, as the law says. They argued that Hartwell didn’t try hard enough to take care of the will on time.

The court agreed with Evelyn’s children and said Hartwell didn’t do his job properly. Hartwell argued that he tried his best and knew about the will since 2004. He said his father was supposed to talk to Janie and Jerry about it. But the court didn’t change its mind. They said Hartwell had the will for over ten years and didn’t do anything with it, so he didn’t follow the rules. The will was denied probate, and Evelyn was found to have died intestate.

Story 2: Alvin’s Will (12-89-00091-CV)

Alvin died on January 18, 1983. His will gave part of his land to his son’s wife, Laura Beth. His will was brought to court by Laura Beth, but she did this more than four years later, on June 27, 1988. Alvin’s wife, Helen, and C.R. didn’t agree with this. Laura and C.R. were going through a divorce. C.R. and his mother would benefit if Alvin’s will was not admitted to probate. They pointed out that you must probate a will within four years.

The big question was whether Laura Beth was in default. If she was not in default, the will could be offered for probate after four years. The question was why she didn’t bring the will to court within four years. The court found out that, over the years, C.R. repeatedly told Laura Beth not to worry about probating the will and that the property would be theirs without going to court. This wasn’t true.

The court noted that in a marriage, there’s a special relation of trust between a husband and wife, which the law refers to as a fiduciary or confidential relationship of trust. This means a husband and wife should be honest and share important information. The court said C.R. should have told Laura Beth the right things about the will. Laura Beth wanted to bring the will to court many times, but C.R. convinced her not to by giving her the wrong information. The court decided C.R. did this on purpose to keep all the property for himself.

Because of this, the court allowed Laura Beth to bring the will to court even though it was late. They said C.R. tricked her, so it wasn’t her fault that she missed the four-year deadline.

 Combining Lessons from Both Stories

Both Evelyn’s and Alvin’s stories highlight the importance of acting quickly and following the rules when it comes to wills. They also show us how misunderstandings or dishonesty can lead to big problems. Here are some key points to remember:

  1. Act Fast: Don’t wait too long to handle important documents like wills. The law often has strict deadlines, and missing them can mean losing your rights.
  2. Be Responsible: Understand what you need to do and don’t rely too much on others to handle everything.
  3. Be Honest: In families, especially between spouses, it’s crucial to be honest and share accurate information about important matters. This helps avoid misunderstandings and ensures that everyone knows what to expect.

What We Learned:

These stories show us why it’s super important to take care of wills on time and follow the rules. If you don’t, you might not get what you should. Also, in families, being honest and sharing correct information is very important to make sure everyone gets treated fairly. Always remember to act quickly and carefully when dealing with important papers like wills to avoid big problems later on.

What You Need to Know about the Burden of Proof in Contesting a Will

What You Need to Know about the Burden of Proof in Contesting a Will

Will Contest in Texas

In Texas, when someone dies, they may leave behind a will. Sometimes, people may disagree about what the will says or whether it is valid. Then, they may go to court to ask a judge to decide. Who has the burden of proof at this stage can be important.

This is what happened in a case called Castello v. Castello, 03-22-00012-CV. In this case, a man named Frank Castello died in 2018. He had a wife named Cindy and three children from a previous marriage. He also had a will that he made in 2012. In his will, he said that he wanted to give his wife the right to use his property for her life, but after she died, he wanted his children to get everything. He also chose his son Mark to be the executor of his will. The executor is the person who is in charge of carrying out the will.

The Contest in Castello

Cindy contested the will. She said that Frank did not have the mental ability to make a will in 2012. She said that he had a stroke in 2006 and that his condition got worse after that. She said that he could not remember things, recognize people, or make decisions for himself. She also said that she had another will that Frank made in 2009. In that will, he gave her more property and less to his children. Cindy wanted the 2009 will admitted to probate.

Mark said that Frank did have the mental ability to make a will in 2012. He said that he talked to Frank about his wishes and that Frank understood what he was doing. He also said that the will was signed by Frank and two witnesses who said that Frank was of sound mind. He asked the court to admit the 2012 will to probate. Probate is the process of proving that a will is valid and following its instructions. Who had the burden of proof would be important in deciding this case.

Trial Court Decision

The trial court had to decide who was right. The court looked at the evidence that both sides presented. Mark had the 2012 will, the affidavit of the lawyer who drafted the will, and a deed that showed that Frank sold some property in 2012. Cindy had her own affidavit and some parts of the lawyer’s deposition. A deposition is when someone answers questions under oath before the trial.

The trial court ruled that Mark was right. The court said that the 2012 will was valid and that Frank had the mental ability to make it. The court said that Cindy’s evidence was not enough to show that Frank was not capable of making a will. The court admitted the 2012 will to probate and dismissed Cindy’s claim.

The Appeal – Burden of Proof

Cindy was not happy with the court’s decision. She appealed to a higher court. She said that the lower court made a mistake. She said that she did have enough evidence to show that Frank did not have the mental ability to make a will in 2012. She said that the court should have let a jury decide the case.

The higher court agreed with Cindy. The higher court said that Cindy’s evidence did show that there was a question of fact about Frank’s mental ability. A question of fact is something that is not clear, and that needs to be decided by a jury. The higher court said that Cindy’s evidence showed that Frank’s physical and mental health had been declining since his stroke in 2006 and that he had Alzheimer’s disease, memory problems, and confusion. The higher court said that this evidence could be used to show that Frank did not have the mental ability to make a will in 2012. The higher court said that the lower court should not have decided the case by itself. The higher court said that the case should go to a jury trial. A jury trial is when a group of people listen to the evidence and decide who is right.

The higher court reversed the lower court’s decision and sent the case back for a jury trial. The case is not over yet. Cindy and Mark will have to present their evidence to a jury and let them decide who gets what after Frank died.

Burden of Proof

The higher court based its opinion on who had the burden of proof. The proponent, Mark, had the burden of proof if the will was contested before it was admitted to probate. Cindy would have the burden of proof if the will was contested after the will was admitted to probate. Because the will was contested before it was admitted to probate, Mark had the burden of proof. Since Cindy put on some evidence of mental incapacity, the trial court was wrong to grant a summary judgment without a jury trial.

Lesson to be learned

A person thinking about contesting a will needs to act quickly. Cindy contested the will early, before it was admitted to probate, and therefore, Mark had the burden. If Cindy had waited until the will was admitted to probate, she would have the burden of proof to show lack of mental capacity. Her evidence may not have met the burden of proof standard.

Void Versus Voidable Marriages

Void Versus Voidable Marriages

Void versus Voidable

In a recent Texas case, Allebach v. Gollub, 14-22-00272-CV, the issue of void versus voidable marriages came up. There is a difference in the way the courts treat void marriages as opposed to voidable marriages. A void marriage is just that, void. A voidable marriage is one that can be declared void but someone must take some action to get it voided.

A man remarried after his wife died. When the man died, the new wife filed a new will for probate that left most of his estate to her. The Man’s children from the first marriage contested the will on the basis that the man lacked the testamentary capacity to make a new will. They also alleged that the marriage to the new wife was void. It was void, according to them, because the new wife was the daughter of their father’s biological sister – she was his niece. The new wife said the children were too late to contest the marriage because they didn’t complain about the new marriage until four years after the man died.

Is it too late?

There is a provision in the Texas estates code, §123.102, that says an interested party must contest a marriage within three years of the date of death of the Decedent. The subchapter is titled “Proceeding to Void Marriage Based on Mental Capacity Pending at Time of Death.”

The new wife said that this provision applied and since the children had not filed their motion to void the marriage within three years, the limitations of that provision applied and they were too late.

The court examined §123.102 and found that it applied to voidable marriages but not void marriages. The court explained that the marriage to a close relative was void and not voidable. Different rules are applied to void marriages. The court pointed out that:

And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.” See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.-Waco 1949, writ ref’d)…Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations.

When you need to contest a marriage of someone who dies, you have to know the difference between void versus voidable marriages. If the marriage is void, as it was here, it can be contested at any time by anybody. However, if you are contesting the marriage because a person lacks mental capacity, you have to contest it within three years of that person’s deat.

Statutory Probate Judges And Why You Want One

Statutory Probate Judges And Why You Want One

Statutory Probate Judges

The largest counties in Texas have Statutory Probate Courts. Those courts handle all probate matters in these large counties. The judges of those courts are well-versed in probate law and procedure. If you have a contested probate matter, it would be best to have a Statutory Probate Judge hear your case because of the judge’s experience and training. However, as stated earlier, the Statutory Probate Courts are only in the largest Texas counties.

If you file a contested probate case in a smaller Texas County, you may get a judge who hears criminal, civil, and probate cases. This doesn’t mean that those judges are incompetent in probate matters. It just means that probate matters make up a small part of their docket.

In medium-sized Texas counties, the county will have a County Court At Law. Of course, the judge of the County Court At Law has to be an attorney, but those courts hear all kinds of cases, from criminal to family matters to probate matters. In counties with a County Court At Law, you cannot request that Statutory Probate Judge be assigned to your case.

So, how can you get one to hear your case?

In the smaller Texas counties, the County Judge, who is more like the mayor of the county, hears uncontested probate matters. The County Judge does not need to be an attorney. If the probate case becomes contested, the case is transferred to the District Court, where the judge has to be an attorney. But these judges also hear all kinds of issues, not just probate cases.

In the smaller Texas counties, those without a County Court At Law, you have the ability to have a statutory probate judge hear your contested case. To get a Statutory Probate Judge to hear your case, you must file a motion requesting one at the beginning of the contest. If you wait and the county judge transfers the case to the district judge before your request, you will be heard in the district court. TEC §32.003, In Re Kohleffel, 13-22-00509-CV, (Tex. App. – Edinburg November 18, 2022.)

Learn more about Texas probate here. Find out the types of Texas probate here.

Can a testator make hand written changes to a will

Can a testator make hand written changes to a will

Can A Testator Make Hand Written Changes To A Will?


As a general rule, if a will is not “wholly” in the handwriting of the testator, it must be attested to by two credible witnesses.

If a testator attempts to make handwritten changes to a written will, those changes must be witnessed by two credible witnesses unless the handwritten parts are separate from the written will, in which case it would be a codicil to the original written will not handwritten changes on the original will.

If a testator wants to make handwritten changes to the written will the changes must be attested to by two credible witnesses. So you might have a situation where there is a will that is attested to by two credible witnesses and then handwritten changes on the written will that are attested to by the same witnesses on the original will or by new witnesses just to the handwriting changes. In the last situation, you would have four witnesses in total! 05-12-01420-CV.

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