Our legal system has numerous deadlines–artificial dates that have to be met. The notice of appeal is an example. If the probate court enters a final order, the parties usually only have 30 days to file a notice of appeal.
There are exceptions, such as the restricted appeal. If the requirements are met, the restricted appeal can be filed within six months. There are nuances and drawbacks to this type of appeal, but it can provide a remedy for those who are not able to timely file their notice of appeal.
The In re Estate of Wilson, 252 S.W.3d 708 (Tex. App. 2008) case provides an opportunity to consider this type of appeal. The case involves a probate dispute between a surviving spouse and her step-son.
Facts & Procedural History
This case involves an internet will. The decedent and his wife found the will on the internet and drafted it. When the decedent died, only a copy of the will could be found. The wife had the will admitted to probate.
The decedent’s son, the surviving wife’s step-son, did not contest the will before it was admitted to probate. About three months later, he filed an opposition and motion for a new trial after the will was admitted to probate. The probate court refused to grant the motions.
About three months after that, the son filed an appeal.
Time for Appealing a Probate Court Order
In Texas, the deadline to appeal a court order depends on the type of case and the court that issued the order. Generally, the deadline to file a notice of appeal is 30 days after the judgment or order is signed. There are a number of exceptions to this general rule.
For example, in civil cases tried in a district court, the deadline to file a notice of appeal is 30 days after the judgment is signed. In criminal cases tried in a district court, the deadline is generally 30 days after the sentence is pronounced or after the entry of the judgment, whichever is later.
However, in some cases, such as cases involving child custody or termination of parental rights, the deadline to appeal may be shorter, such as 15 days after the order is signed.
For probate cases, once a final judgment has been entered, the parties have 30 days to file a notice of restricted appeal. A notice of appeal is a formal document filed with the court that starts the appeals process. It lets the court know that you (as the executor or administrator) intend to challenge the ruling.
These deadlines are strict. Missing the deadline to file a notice of appeal can be fatal to an appeal.
Restricted Appeals in Texas Probate Cases
A restricted appeal can be used if the notice of appeal is not timely filed. This is provided for in Texas Rules of Appellate Procedure 26.1(c).
For the restricted appeal, the notice of appeal must:
- state that the appellant is a party affected by the trial court’s judgment but did not participate— either in person or through counsel—in the hearing that resulted in the judgment complained of;
- state that the appellant did not timely file either a postjudgment motion, request for findings of fact and conclusions of law, or notice of appeal; and
- be verified by the appellant if the appellant does not have counsel.
If these requirements are met, the appellate court can consider the late-filed appeal.
The downside or potential problem with the restricted appeal is that the appellate court can only review the case for errors that are evident in the record. The appellate court can only review the evidence that was presented at the trial court. This includes all the papers on file in the appeal, including the statement of facts in the court reporter’s record.
What Issues Can Be Raised in a Restricted Appeal
The parties can raise the same types of issues in the restricted appeal as in a timely-filed appeal. But while the issues may be raised, the nature of the restricted appeal may impact the outcome.
For example, in this case the son raised the following issues:
- the applicant failed to overcome the presumption that the will had been revoked;
- the applicant failed to substantially prove the contents of the lost will by the testimony of a credible witness who has read the will or heard it read; and
- the applicant failed to serve the appellant with a copy of the applicant’s first amended application to probate the will and issuance of letters testamentary.
On appeal, the appellate court determined that the step-mother was not required to provide the son with a copy of the application. So it did not act on that issue.
The appellate court did act on the first issue, namely, that the copy of the will was not sufficient. Specifically, the appellate court focused on the presumption that a will is revoked if the original cannot be produced. The step-mother probated a copy of the will, but apparently, the record did not include evidence supporting the admission of the copy.
This is usually testimonial evidence from the applicant, the step-mother in this case, and two disinterested witnesses. The probate courts often do not have a court reporter present during uncontested hearings like this. Thus, even if the evidence was put on in court, the record of this evidence may not have been created and submitted to the appellate court.
The restricted appeal can be useful if the time for filing a notice of appeal has passed. As noted in this case, there are requirements that have to be met to make this a viable option. This includes that the appealing party did not participate in the underlying court case. Even if this late appeal can be had, one also has to consider the issues that can be raised and whether the parties are likely to be able to prevail on the appeal using these rules.
Our Houston Probate Attorneys provide a full range of probate services to our clients, including appeals for probate disputes. 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.