Appealing A Will Contest After Trial

Robert Ray

CaptureWhen a non probate case has been filed and tried and the judge has entered a final judgment disposing of all the parties and all the issues you have thirty days from the date of the judgment to take some action to appeal the case. The action can be filing a notice of appeal or filing some motion that will extend the deadline for a short period of time. If you miss the thirty day limit, your case is over forever and ever, amen. No matter how good your appeal may have been, it won’t be heard by the Court of Appeals because the deadline was missed.  On the other hand, if the judge enters a judgment but for some reason the judgment doesn’t dispose of all the parties or all of the issues, you can’t appeal. The judgement is an interlocutory judgment, meaning it is not final. If you try to appeal, the Court of Appeals will just dismiss the appeal until the judge enters a final judgment disposing of all the parties and all the issues.

Probate cases are different. Since a will contest is a probate case, the time limits for appeal are different also. In probate cases, it is not necessary that the decision, order, decree, or judgment be one that fully and finally disposes of the entire proceeding. In a probate case, you must appeal a ruling of the court that finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceedings is brought even though the decision, order, decree, or judgment referred to is one that does not fully and finally disposes of the entire proceeding.

So what does this all mean? An attorney not familiar with probate cases may not realize that he can and must file an appeal of the judge’s order or judgment even if it is not a final judgment. For instance, in a recent case contesting a will, a judge granted a pre-trial motion filed by the proponents of the will. Since the attorney for the contestants wasn’t familiar with probate cases, he waited until a final judgment was signed before he started the appeal. The San Antonio Court of Appeals dismissed the appeal because the time limits for the appeal began from the date the judge granted the pre-trial motion, not the date the judge signed the final judgment. The appeal was too late. 04-08-00601-CV. The order must dispose of a phase of the proceedings. No. 04-13-00157-CV.

Update – Newer Cases:

A 2016 case dealt with the the issue of final judgments in a probate case. One party claimed that the appeal was improper because the judgment appealed from was not final. The court distinguished probate cases from other cases and ruled that the judgment was final for appeal purposes. This case did not involve standing. No. 11-14-00086-CV


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The Author

Robert Ray

Robert Ray handles inheritance disputes of all kinds. He takes cases throughout Texas.
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