Problems filing in the wrong court

Problems filing in the wrong court

What happens if you miss-file your claims

When a case or claim is filed in the wrong court, you may lose your claim without being heard. If your case is dismissed after the statute of limitations has run, you are out of luck no matter how good your claim was.

Necessary Disclaimer: Do not take, or refrain from taking, any action based on what you read. You need to discuss your situation with an attorney who can advise you based on your facts.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

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Filing in the wrong court

In a 2020 case, a man died and his family filed his probate case in the probate court. His wife ( a divorce was pending but was not final so she was still his wife) filed an opposition and also filed a tort suit against the other family members in the probate court asserting claims of business disparagement and intentional infliction of emotional distress. (“the tort case”). The other family members filed a motion to dismiss under the Texas Anti-SLAPP law. The probate judge granted the motion to dismiss the tort suit and ordered the wife to pay attorney’s fees to the other family members. The wife appealed. 4-19-00500-CV.

No jurisdiction

In the appeal, the appeals court ruled that the probate court did not have jurisdiction over the tort suit. Because this decision came more than two years after the claims accrued, it was too late for the wife to refile them in a court that did have jurisdiction. 

The moral of this case?

If you file in the wrong court you may never get your case decided on the merits.

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Robert Ray is the Editor and owner of this site. Board Certified, Personal Injury Trial Law — Texas Board of Legal Specialization. We handle cases throughout Texas. Our principal office is in Lantana, Texas (DFW area).

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Can Parents, Siblings, Aunts, Uncles, Nieces and Nephews Inherit?

Can Parents, Siblings, Aunts, Uncles, Nieces and Nephews Inherit?


In Texas Parents, siblings, aunts, uncles, nieces, nephews and others are heirs for the purpose of distributing the estate of the deceased if he died intestate and if the deceased had no spouse or children. Even if the deceased had a spouse but no children, the other relatives may be entitled to some of the property. The rule is, if you can’t go down the family tree, you go up then out on to the branches to determine who inherits.

If you have questions about your inheritance rights and would like to talk to an estate planning attorney or a lawyer who is familiar with inheritance and probate law to advise you about your inheritance rights, click on the “Contact Us” tab at the top.

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Can Nieces and Nephews Contest a Will

Can Nieces and Nephews Contest a Will

Yes, Nieces and Nephews can contest a will in Texas.

If you are an interested party, you can contest a will in Texas.

Whether the will contest will benefit you depends on several factors. If your parent, who is a sibling of the deceased, is still alive, then your parent would inherit everything if the will is set aside and nothing would go to you. That may be you ultimate goal, e.g., get mom or dad their rightful inheritance from their sibling. But, if your parent who is the sibling of the deceased, is not alive then you would inherit if the will is set aside.

Of course, all of this is dependent on the deceased not having any children. If the decedent has children, then the brothers and sisters and Nieces and Nephew will not inherit even if the will is set aside. The same is true to a lesser extent if the decedent has a spouse. The siblings or Nieces and Nephews would still inherit if the will is set aside but so would the wife.

If you have a question about a pending or anticipated lawsuit about contesting a will in Texas, use the Contact Us page at the top of the site to see if we can help.

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Find Out Who Can Contest a Will in Texas?

Find Out Who Can Contest a Will in Texas?

Any person interested in an estate may contest a will. The Probate Code defines “interested persons,” in relevant part, to be: children, heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered . . .” The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will. That means you must have a financial interest to contest a will. An interest resting on sentiment or sympathy, or any other basis other than gain or loss of money or its equivalent, is insufficient. For instance, a person leaves all his property to a girlfriend and not his children. A friend or neighbor cannot contest the will even if he/she believes that the children should have received the property because the friend or neighbor will not benefit financially whether the will is admitted or denied probate. Of course the children can contest the will because they would financially benefit if the will is not admitted to probate but the friend or neighbor cannot contest it.

If a person accepts benefits under the will, he may be estopped from contesting the will. To avoid estoppel, the person may have to return the benefits that he received under the will in order to contest it. In certain situations, the return of benefits may not be required. For more information on contesting a will after you have received benefits click here.

In a recent case, the issue of “interested person” was at issue.  In that case, two wills were offered for probate.  The daughter of the deceased offered a 2002 will for probate.  The executrix of a 2005 will offered it for probate.  She also contested the 2002 will offered by the daughter. The executrix named in the 2005 will was not an heir and she did not benefit from he 2005 or 2002 will.

The court first found that the 2005 will was not executed with the proper formalities and could not be admitted to probate.  The judge then ruled that the executrix of the 2005 will was not an “interested party” of the 2002 will and could not contest it.  The court then admitted the 2002 will to probate.

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Can you contest a will if you accepted benefits?

Can you contest a will if you accepted benefits?

What if someone has obtained a will by taking advantage of an elderly person. They give or offer to give you some of the property from the estate. Should you take it? What if you have already accepted the property and later decide to contest the will? Can you? Texas law is changing in this area. In the past, as shown by the information below, some courts would say your acceptance of that property will prevent you from contesting the will. However, in a 2017 case, the Texas Supreme Court held that the acceptance-of-benefits doctrine is a fact-dependent, estoppel-based doctrine that focuses on unfair prejudice to the opposing party. 14-1038. While this was not a will contest case, the logic of this case should apply to will contest cases also. You should not make, or refrain from making, a decision about contesting a will until you have discussed your facts with an attorney who handles cases about contesting a will in Texas.

Every case will be decided on the facts of that case. In the past, a beneficiary who accepts and retains benefits under a will may be estopped from contesting it. 564 2d 682. Some courts have held that the fact that the beneficiary did not have knowledge of all the facts on the need to contest the will at the time of his acceptance of benefits is immaterial. 620 2d 691. The same is true if the amount accepted is but a small part of what he would receive if the will was set aside. 935 2d 827. A good discussion of Texas cases dealing with the acceptance of benefits and standing to contest a will is in a case out of Fort Worth in 2016. No. 02-16-00103-CV.

Returning or tendering the property back to the estate may allow a person who accepted benefits to contest the will. Other courts have held that estoppel only applies if the contestant receives benefits that they would not have been entitled to under the will or intestacy. If you receive benefits that you would have received anyway, there is no estoppel. If you are in a situation where you believe that a will needs to be contested but you have accepted benefits, it is necessary that you consult with a Texas attorney who handles inheritance matters to see what your rights are.

On my blog, I have written about the acceptance of benefits and the enforcement of an arbitration clause in a will.

2019 Update: Even if a beneficiary accepts benefits under an estate, that does not stop him from pursuing other estate-related rights he has as a devisee, such as seeking to be named administrator. 06-18-00049-CV.

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Contesting a will in Texas

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