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Contesting a Will After the Probate Assets are Distributed

There are a number of challenges an executor can face in administering an estate. Will contests are an example. Even the best-written will can be challenged.

These disputes can be particularly troubling if they are filed after the estate has been administered and the probate assets have been distributed. The executor may have no way to recover the assets that were distributed.

The court recently considered this fact pattern in Estate of Perez-Muzza No. 04-16-00755-CV (Tex. App.-San Antonio 2018).

Facts & Procedural History

This case involves a will that left the entire estate to the decedent’s nephew.

The decedent passed in 2007. Seven months prior, she had executed a will leaving everything to her nephew and appointing her nephew as the independent executor.

The decedent’s will was admitted to probate in December of 2007. The nephew administered the probate estate and distributed the assets. The probate court approved the final accounting in August of 2008.

In December of 2009, another family member filed a will contest alleging that the will was not properly executed.

The probate litigation continued for several years, culminating in an appeal filed by the nephew.

The appeal involved whether the will contest should be allowed even though it was not started until after the estate was administered and the probate assets distributed.

The Time for Filing a Will Contest

The time for bringing a will contest is a logical place to start in considering this case.

Texas law says that an action to contest the validity of a will has to be brought within two years from the date the will is admitted to probate by the trial court.

In this case, the will was admitted to probate in December of 2007 and the will contest was commenced in December 2009–with two days remaining on the two-year statute of limitations.

So the will contest was timely, even though it wasn’t necessarily fair given that the probate assets had already been distributed and the family member was aware of this.

The Laches Affirmative Defense

The probate courts have various equitable powers that allow the courts to correct injustices. This includes the laches doctrine.

Laches is an affirmative defense. It is raised by a defendant in a lawsuit. The court described laches as follows:

The affirmative defense of laches precludes a plaintiff from asserting a legal or equitable right after an unreasonable delay against a defendant who has changed his position in good faith and to his detriment because of the delay. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex. App.-San Antonio 2005, no pet.).

If successful, the court dismisses the plaintiff’s claim based on laches. In this case, this would mean that the will contest would be dismissed.

The court noted that Texas law requires extraordinary circumstances for laches to apply in situations, like a will contest suit, where state law provides a time for bringing suit. More specifically, laches only applies in these situations where extraordinary circumstances would result in a grave injustice.

Is Laches a Valid Defense to a Will Contest?

The court had to decide whether laches was a valid defense to a will contest.

The nephew argued that laches applied and that his administering the estate and distributing the estate assets constituted an extraordinary circumstance.

The court determined that there was nothing extraordinary about these facts or that there was a grave injustice if the plaintiff continued her will contest suit.

The court seemed to acknowledge that this result may have been different if there was more evidence that the probate assets had been distributed to a third party, such as the IRS or other beneficiaries. The court didn’t feel that there was sufficient evidence of this in this particular case. This leaves the door open to the laches defense for other cases.

The Takeaway

This case shows why those administering estates may want to delay making distributions if they think a will contest is likely. This can help avoid situations where assets are distributed and difficult for the estate to recoup.

f you are facing probate issues in Texas, Kreig LLC offers a FREE attorney consultation by calling (281) 219-9090. Our experienced probate attorneys will work with you to provide the guidance and support you need during this difficult time.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with will contests. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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