Can You Have an Heirship Determination if There is a Will?

Can You Have an Heirship Determination if There is a Will?

Heirship Proceedings in Texas

The Texas Estates Code provides that the probate court

“may conduct a proceeding to declare heirship when…a person dies intestate owning or entitled to property in this state and there has been no administration in this state of the person’s estate.” §202.002(1).

That section came into play in a case decided by the Amarillo court of appeals, 07-21-00137-CV.

Facts

In the case, a sister, Wanda, filed her brother’s will for probate, which left his property to her. She claimed that he lived in New Mexico but was domiciled in Texas. The will was admitted to probate, but the estate was never closed. Almost two years after the will was admitted to probate, a woman, Ginger, filed a bill of review claiming that she was the brother’s common-law wife and asked the trial court to determine the brother’s heirs. Ginger claimed that she was a pretermitted spouse under New Mexico law and that New Mexico law applied because the brother/husband lived in New Mexico.

Wanda filed a motion to dismiss the claim because the brother left a will, and she claimed that the court could not have an heirship determination if the decedent had a will, relying on §202.002(1). The trial court agreed and dismissed Ginger’s claims.

Appeal

When Ginger appealed, the court of appeals reversed and sent the case back to the trial court to hear Ginger’s claims. The appeals court ruled that §202.002(1) did say that a person had to die intestate before an heirship determination could be heard, but the additional language “and there has been no administration in this state of the person’s estate” made an exception for Ginger to have an heirship determination. Wanda cited a Texas Supreme Court which dismissed an heirship determination, but the appeals court noted that the administration had been closed in that case, it had not been closed in this case.

What Could Have Done

If Wanda had closed the case, would that have helped? There are reasons to leave an estate open, but in this case, if Wanda knew Ginger was around and might do something, it would have been better to close the estate.

Bill of Review

Bill of Review

Bills of Review in Texas

When a case doesn’t turn out the way you want in the trial court, you appeal to the court of appeals. But what can you do if you didn’t know about the case or didn’t learn of a trial setting until an appeal was too late? A bill of review allows you to bring the problem to court. Texas has two types of bills of review, an equitable bill of review and a statutory bill of review. The difference between the two was highlighted in a recent case.

In Gill v. Bordokas, 14-21-00356-CV. from the Houston 14th court of appeals, a man died intestate. One of his daughters filed an application to determine heirship where she alleged that he was not married and that she and her siblings were his only heirs. Within the time allowed, a woman filed a motion for new trial claiming that she was the common-law wife of the man. The woman did not request a hearing and the motion for new trial was eventually overruled by operation of law. Seventeen months later, she filed a statutory bill of review asking the court to overturn its order on heirship. The judge denied the bill noting that she did not pursue her motion for new trial when she could have. The alleged common-law wife appealed.

Equitable Bill of Review

The appeals court first discussed the court’s holding that the woman was not diligent. It listed the requirements for an equitable bill of review which requires diligence.

To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s inability to make the claim or defense was unmixed with any fault or negligence on the petitioner’s own part...When cases involving res judicata have arisen in the context of an equitable bill of review, there is normally a failure by the petitioner to satisfy one of these three elements.

However, the court stated that the alleged common-law wife filed a statutory bill of review, not an equitable one.

Statutory Bill of Review

But this case involves a statutory bill of review, which Gill sought under Section 55.251 of the Texas Estates Code. That statute provides that “an interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” See Tex. Est. Code § 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a matter or proceeding relating to a decedent’s estate,” which includes a determination of heirship). By its plain language, this statute authorizes a bill of review in a probate proceeding merely upon “a showing of error,” without the other elements required by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain this statutory bill of review even if the petitioner did not exercise the amount of diligence that would be demanded in the context of an equitable bill of review.

There is still a two-year statute of limitation on filing a statutory bill of review, but you don’t have to show that you were diligent.

UPDATE: In October 2023, the El Paso court of appeals found that a bill of review was the proper way to question an order admitting a will to probate as a muniment of title. 08-23-00019-CV.

Difference between annulment and divorce in Texas

Difference between annulment and divorce in Texas

What is the difference between annulment and divorce?

A divorce is a court order that ends a marriage. An annulment is a court order that the marriage never existed.

An annulment can only be ordered based on limited circumstances like fraud, duress, or force as well as underage parties, alcohol or drug abuse, mental capacity, etc. There has to be some kind of untruthfulness that caused the person seeking an annulment to enter the marriage when they would not have done so if they knew the truth.

A divorce can be ordered when the parties feel they cannot continue living together. So, there was a marriage that is now ended.

What difference does it make in inheritance disputes?

A recent case shows how an annulment affects inheritance disputes. 02-21-00044-CV. In this case, a man, Quebe, died intestate. His daughter asked the probate court in Galveston to appoint her the independent administrator of the estate. A woman named Wallace, who claimed she was the common-law wife of Quebe, filed a competing application. Wallace was married to a man, King, who lived in Wichita County. Wallace went to Wichita County and asked the judge to annul the first marriage to King based on fraud. King didn’t object so the judge granted her an annulment. Wallace then returned to Galveston where the judge found that she was the common-law wife of Quebe and had priority of appointment as the administrator of his estate.

If the woman had gotten a divorce, she couldn’t be the common-law wife of Quebe because she was already married. But, by getting the marriage annulled, it is as if no marriage ever existed! And in this case, the probate judge found that she had put on enough evidence to find that she was the common-law wife.

Can you have a secret common-law marriage in Texas

Can you have a secret common-law marriage in Texas

Texas Law

Texas recognizes common-law marriages or what Texas refers to as” informal” marriages. An informal marriage may be proved in one of two ways. The first way is to introduce a declaration of informal marriage that has been filed with the County clerk. If there is no declaration of marriage, a common-law marriage may be proved by showing: (1) agreement to be married; (2) after the agreement, living together in Texas as husband and wife; and (3) representing to others in Texas that they were married. FC §2.401. The statutory requirement of “represented to others” is synonymous with the judicial requirement of “holding out to the public.” Both of these methods of proving an informal marriage depend upon the marriage being open and obvious to anyone who bothers to look.

Can you have a secret common-law marriage in Texas

What happens in those circumstances when the informal marriage is kept secret from a few are many people? The courts have held that a marriage that was secret from only a few members of the couple’s family was a common-law marriage because the marriage was widely known in the community. 734 S.W.2d 27. On the other hand, courts have denied a common law marriage when the marriage was known to only a few. 333 S.W.2d 361. In other words, the cohabitation must be professed as husband and wife, and public, so that by their conduct towards each other they may be known as husband and wife.

Update: In a 2019 case, a Declaration of Marriage was filed in 2015 saying that the parties had been married since 2010. If they were married in 2010, it would be too late to contest the marriage. If they were married in 2015, the man’s children could contest the marriage. The court ruled that there was no evidence that the parties held themselves out as husband and wife (representing to others that you are married) before 2015, so there was no marriage before 2015. The children contested the marriage of 2015 saying that he was not mentally competent to marry. The jury agreed with the children that he was not mentally competent. 13-17-00431-CV.

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