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Volume XII, Number 272

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Court Reversed Order Admitting a Will to Probate as a Muniment of Title Due to the Statute of Limitations

In Marshall v. Estate of Freeman, a trial court’s order admitting a will as a muniment of title forty-one years after the testator’s death was reversed. No. 03-20-00449-CV, 2022 Tex. App. LEXIS 2857 (Tex. App.—Austin April 29, 2022, no pet. history). The court of appeals stated:

With exceptions not applicable here, a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death. “Default” means “failure to probate a will due to the absence of reasonable diligence on the part of the party offering the instrument.” A person having custody of a will is charged with knowledge that it must be filed for probate within the statutory period in order to rely on it, whether the necessity for doing so is apparent to him or not. Ignorance of the law does not excuse failure to comply with the statute. A person who has custody of a will and refrains for the statutory period from presenting it for probate for personal considerations or under the assumption that his title to property is safe without it is in default. As used in section 256.003(a), “default” means failure to probate a will because of the absence of reasonable diligence by the party offering the instrument. However, Texas courts have been quite liberal in admitting a will to probate as a muniment of title after the four-year limitation period has expired upon the showing of an excuse by the proponent of the reason for the failure to offer the will. Nearly a century ago, the Waco Court of Appeals observed that “[t]he tendency of our courts has been from its earliest decisions to permit wills to be filed after the four year period, where there is any evidence of a probative force which would excuse the failure to offer the will sooner.” Though ignorance of the law is no excuse, the proponent’s belief that probate is unnecessary, coupled with a concern over the possible cost of probate, can constitute legally and factually sufficient evidence to support admitting a will to probate more than four years after the death of the testator. Generally, a party applying for probate would not be considered personally in default if he or she did not know of the existence of the will, provided such proponent was not negligent in failing to discover whether there was a will. The evidence must show a lack of diligence in offering the will for probate as muniment of title. Courts must examine solely the applicant’s actions to determine default and cannot consider whether permitting the late probate of a will would work an injustice or frustrate the intent of the testator.

Id. The court of appeals held that there was no evidence to support the trial court’s finding that the executor was excused as the evidence showed that he waited a year after an attorney told him that he needed to probate the will:

However, no evidence supports a conclusion that Executor acted reasonably diligently in probating the will as muniment of title upon discovering the will and the need for probate. His eleventh-grade education, lack of experience acting as executor of a will, and lack of legal sophistication do not excuse his decision not to apply for probate of the will for a year after his lawyer told him he needed to do so. There is no evidence in the record that he lacked funds to hire a lawyer other than perhaps an inference from the fact that the taxes on the property were past due, and that tenuous inference is undermined by the fact that Executor learned that the will needed to be probated by consulting a lawyer. This case is unlike the case in which delay in probating was excused because there was evidence, albeit disputed, that the applicant had previously received advice from an attorney and believed that everything regarding the will that needed to be done had been done and that probate was unnecessary. Here, the evidence is that Executor waited a year after being told he needed to probate the will, including seven months after Appellant filed his suit to establish heirship. The year-long delay after being told to probate the will by a lawyer he consulted about negotiations with the highway department distinguishes this case from ones in which people who had assumed they did not need to probate a will did so shortly after learning of the need to probate the will…

In this case, there is no evidence of diligence—and undisputed evidence of lack of reasonable diligence—in applying for probate of the will and no evidence of excuse for Executor’s delay. While Executor’s delay is excusable for the decades after Testator’s death before he learned of the will, Executor was charged with knowledge that the will must be filed for probate upon learning that his niece had found the will. Even if his lack of higher education and legal sophistication excuse his failure to apply for probate through August 2018, no evidence supports a finding of reasonable diligence in his failure to apply for probate for a year after a lawyer told him that the will needed to be probated. This is not a case in which he believed a lawyer told him that he did not need to probate the will or in which someone else filed a legal action that he believed would lead to probate of the will. Instead, he did not file to probate the will when told he needed to do so and waited seven months after Appellant filed his Application for Determination of Heirship and for Partition of Property that expressly, if incorrectly, stated that Testator died intestate. No evidence in the record provides an explanation or excuse for Executor’s delay for a year after being told to file the will for probate, including seven months after Appellant filed this suit. Executor failed to carry his burden to prove diligence that negates default in timely probating the will.

Id. The court reversed the trial court’s order admitting the will to probate as a muniment of title.

© 2022 Winstead PC.National Law Review, Volume XII, Number 218
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About this Author

David Johnson Financial Institution lLtigation Winstead Law Firm Fort Worth Texas
Managing Shareholder - Fort Worth

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

817.420.8223
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