Probate litigation often involves various motions filed by the parties. These include motions related to discovery requests, such as motions to compel and motions for protective orders. There are also motions to turn over property of the estate or to compel accountings by the executor.
One of the key challenges in probate cases is determining whether a particular filing by a party is considered a final judgment that can be appealed. Only final judgments are appealable immediately. Interlocutory orders that are not final judgments generally cannot be appealed until the conclusion of the case. This distinction is critically important, because appealing at the wrong time can result in a party losing their ability to appeal a probate court’s order altogether.
To make matters more complicated, whether an order is final and appealable or interlocutory often depends on the type of filing that triggered the court’s order. In probate cases, the triggering document may be an application, a motion, a complaint, or a petition. There are also filings called oppositions. Determining which filings lead to final appealable judgments and which merely generate interlocutory orders is a complex analysis.
The recent case of In re Aldrete, No. 04-20-00426-CV (Tex. App.–San Antonio [4th Dist.] 2022), provides an opportunity to examine one aspect of this question. The court addresses whether a motion filed in a probate case should be treated as a complaint or petition for purposes of the will contest filing deadline.
The Facts and Procedural History
This case centered on two competing wills – one executed in 1981 and another executed in 2008. The testator died in 2016.
The 1981 will left the bulk of the estate to the testator’s estranged son from his first marriage. The estranged son probated the 1981 will and was appointed executor in 2018, at which point the 1981 will was formally admitted to probate.
In 2018, the testator’s second wife and stepson filed a motion to set aside the 1981 will, asserting that the 2008 will leaving the estate to them was the valid last will and testament. The 2008 will essentially disinherited the estranged son, leaving nearly everything to the second wife, with the stepson inheriting under her will after she died.
The probate court granted the motion, entering an order setting aside probate of the 1981 will. The court then admitted the 2008 will to probate in its place. The estranged son appealed the order, resulting in the appellate court decision discussed here.
Competing Applications to Probate a Will
When there are competing wills, slightly different rules apply depending on whether the second application for probate is filed before or after the first will has already been admitted to probate.
Prior to any will being admitted to probate, if there are multiple wills offered for probate, the court is to hear the competing applications together and decide which will (if any) should be probated. This process is laid out in Section 256.101 of the Texas Estates Code.
However, after a will already has been admitted to probate, an interested party can file a subsequent application to probate a different will. In that instance, the court must consider whether the previous probate should be set aside and the new will admitted, or whether the decedent died intestate without a valid will. This subsequent process is provided for in Section 256.102 of the Estates Code.
The timing difference is important because there are different statutes of limitations in each scenario. In the first situation where no will has yet been probated, parties can file competing applications to probate a will within four years after the testator’s date of death. But in the second situation where a will already has been admitted to probate, the subsequent application generally must be filed within two years of the date the original will was admitted to probate.
When Is a Filing a Will Contest?
There is some uncertainty whether a subsequent application to probate a different will qualifies as a “will contest” that is subject to the two year limitations period. This was one of the issues addressed in the Aldrete case.
Here, the testator’s second wife initially filed a motion to probate the 2008 will in 2018, within two years of the 1981 will being admitted to probate. But it wasn’t until 2019 that they amended their motion to specifically request that the 1981 probate be set aside. Both the original motion and amended motion were filed within the two year window.
On appeal, the estranged son argued that the initial motion was not a proper will contest pleading. This is at least partially true, since a motion is not a petition or complaint as those terms are used in civil procedure rules.
However, the appeals court noted that even the original 2018 motion had requested that the 1981 will be set aside. The court focused on the substance of the filing rather than its title. Since the motion adequately requested that the prior probate be invalidated, the court found this was sufficient to qualify as a will contest for limitations purposes. The filing deadline was satisfied.
The outcome in cases like this often depend on how a particular court views motions filed in a probate case. To avoid any ambiguity, the safest approach is to file a petition or complaint clearly delineated as a will contest when challenging a previously-admitted will. Relying on a motion to serve as a will contest pleading can lead to disputes about whether limitations were met. Not all courts may be so forgiving. Filing a clear will contest complaint is the most conservative approach when seeking to overturn the probate of an earlier will to avoid disputes over the statutory deadline.
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