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Do All Will Beneficiaries Need to Participate in a Will Contest?

Generally, all interested parties have to be included in the litigation. This is a fundamental rule in our system of justice.

There are times when this is not required, however. There are instances where the rules say that interested parties do not have to be joined. This is often to avoid unnecessary delays or to protect confidentiality.

This raises the question as to whether all parties interested in a probate estate have to be joined in a will contest. Put another way, can just one or a few of the beneficiaries of a will contest the will and exclude others? And if you exclude a necessary party, will it result in the case being dismissed?

The court addresses these questions in Klein v. Dimock, 705 S.W.2d 405 (Tex. App.–Fort Worth 1986, writ ref’d n.r.e.).

Facts & Procedural History

This case involves a husband and wife who executed a joint and mutual will in 1961. The will left the estate to the surviving spouse. Upon the survivor’s death, the will provided that the estate was to go to their grandsons, Lawrence W. Klein and Jimmy Klein.

After the wife passed away, the surviving husband probated the 1961 will. In 1981, the surviving spouse executed another will that revoked the 1961 will. The 1981 will named Lee Dimock and Bill Holman as the co-independent executors, and gave Lawrence and Jimmy a smaller share of the estate.

Lee and Bill filed an application for the 1981 will in probate court, and it was admitted to probate.

Lawrence and Jimmy filed suit to contest the 1981 will. They also filed an application for the probate of the 1961 will executed by the surviving husband.

The trial court ruled that all beneficiaries under the 1981 will were necessary parties and had to be brought into the lawsuit, and Lawrence and Jimmy filed another petition to contest the probate. The probate court entered the judgment Lawrence and Jimmy’s will contest was barred by the two-year statute of limitations. The probate court stated that more than two years had passed since the order admitting the 1981 will, and this had occurred before all the necessary and indispensable parties were brought into the suit.

Joinder in Texas Legal Cases

The concept of “joinder” is fundamental to our legal system. In a legal case, joinder refers to the process of bringing together multiple parties or claims into a single lawsuit. It allows for the consolidation of related legal issues and the efficient resolution of disputes. Joinder serves the purpose of promoting judicial economy, avoiding multiple lawsuits on the same matter, and ensuring that all relevant parties and claims are addressed in a single proceeding.

Rule 39 of the Texas Rules of Civil Procedure sets out the joinder rules that apply in Texas. The rule says that a person who is subject to service of process (i.e., they can be legally brought into the lawsuit) should be joined as a party in the action.

  1. Inability to Accord Complete Relief: If the absence of a particular person would prevent the court from granting complete relief among the existing parties, that person should be joined as a party to the lawsuit.
  2. Claimed Interest: If the absent person claims an interest relating to the subject of the action and their absence may (i) practically impair or impede their ability to protect that interest, or (ii) expose any existing party to the risk of incurring conflicting obligations due to the claimed interest, then that person should be joined as a party.

If the absent person meeting the above criteria has not been joined voluntarily, the court has the authority to order that person to be made a party. If the person should join as a plaintiff but refuses to do so, they may be made a defendant or, in specific situations, an involuntary plaintiff.

To Add Parties or to Dismiss?

The rule goes on to say that when a person meeting the criteria above cannot be made a party to the action, the court must decide whether the action should proceed among the existing parties or be dismissed. The absent person is considered indispensable in this context. The court should consider several factors, including:

  1. Prejudice: The extent to which a judgment rendered in the person’s absence might be prejudicial to them or the existing parties.
  2. Protective Provisions: Whether protective provisions in the judgment or other measures can lessen or avoid any prejudice caused by the person’s absence.
  3. Adequacy of Judgment: Whether a judgment rendered in the person’s absence will be adequate.
  4. Adequate Remedy: Whether the plaintiff will have an adequate remedy if the action is dismissed due to the non-joinder.

Joinder in Texas Probate Cases

Section 256.204 of the Texas Estates Code sets out the period within which a person can contest the validity of a will after it has been admitted to probate.

It says that after a will is admitted to probate, an interested person may commence a suit to contest the validity thereof not later than the second anniversary of the date the will was admitted to probate.

The “an interested person” does not say that all interested parties have to be joined in the proceeding, yet alone joined before the time period expires for filing suit.

Despite this, the appeals court in the Klein case ruled that all of the parties were not joined in the case timely before the time to contest the will expired, and, as such, the probate court was correct in dismissing the will contest.

More specifically, the appellate court stated that the application to admit the 1961 will was a direct attack against the 1981 will (which invalidated all prior wills) and was thus subject to the two-year statute of limitations for will contests all necessary and indispensable parties were not brought into the matter within the required time period.

More Recent Case Law

There have been two other appellate opinions that have reached the same conclusion as the court did in Klein.

While the Klein case seems to set out a clear rule, at least one appeals court has reached the opposite conclusion on similar facts. Wojcik v. Wesolick, 97 S.W.3d 335 (Tex. App.—Houston [14th Dist.] 2003, no pet. h.) case is an example.

In Wojcik, the court concluded that not all parties had to be joined in a will contest. It based this holding on a reading of the Texas Estates Code.

The Takeaway

This highlights the significance of joinder in will contests and the implications of the statute of limitations. While the general policy is to join all interested parties, there may be exceptions based on policy considerations such as avoiding delays, preserving confidentiality, or protecting privacy. The case underscores the importance of timely action and the involvement of all relevant parties to ensure a fair and efficient resolution of will contests. While there are conflicting opinions on whether all interested parties must be joined, it is advisable to include all parties to minimize potential complications and uncertainties.

Hire an Experienced Probate Attorney

When it comes to will contests in Texas, it is important to follow the rules to the letter. Hiring an experienced probate attorney can help ensure that your paperwork is in order and filed correctly. Call us for a FREE attorney consultation. (281) 219-9090.

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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