A mixed family and a late marriage are often ingredients for a probate dispute. This is especially true when there are signs of mental decline and the new spouse appeared and quickly became the primary beneficiary.
When these red flags combine with a will that dramatically changes long-standing estate plans, surviving family members face a difficult choice about whether to challenge what appears to be fraud.
The decision becomes even more complex when defendants respond by filing motions under the Texas Citizens Participation Act (“TCPA”) to dismiss fraud allegations as frivolous lawsuits. These anti-SLAPP motions can derail legitimate fraud claims if courts misapply the law’s timing requirements and exemptions.
But when exactly does the TCPA apply to probate fraud claims? The answer depends on a distinction that many courts struggle to grasp: whether the alleged fraudulent conduct occurred before or during judicial proceedings. A recent case of Odic v. Gleghorn, No. 12-24-00259-CV (Tex. App.—Tyler Jul. 9, 2025) gets into this timing distinction for fraud claims in probate litigation.
Facts & Procedural History
Eugene was married to his wife Penny for over fifty years until her death in 2009. They had two children together. After Penny’s death, Eugene’s granddaughter Connie began managing his business affairs at his direction. Connie was Eugene’s son’s daughter.
In 2010 and again in 2012, Eugene executed wills that appointed his sister and Connie as executors and trustees. These wills made specific bequests to various parties, including a life estate in Eugene’s residence to Connie, with the remainder passing to his children and their descendants.
The family dynamics changed dramatically in July 2014 when Eugene married Jacqueline. During this period, Eugene reportedly suffered from confusion and memory loss. Connie attempted to reestablish contact with her grandfather by initiating guardianship proceedings, which were later dismissed.
In October 2014, Eugene and Jacqueline met with an attorney to prepare a new will. Eugene signed this will in December 2014, with two witnesses present. This will left the bulk of Eugene’s estate to Jacqueline while naming her as executor.
In October 2018, Eugene signed yet another will prepared by the same law firm (the “2018 Will”). This will was witnessed by two witnesses and a notary. The 2018 Will again left the bulk of the estate to Jacqueline, with only $5,000 going to his grandchildren.
Following Eugene’s death in April 2020, Jacqueline filed to probate the 2018 Will and was appointed executor. In December 2020, Connie filed a will contest, challenging the validity of the 2018 Will on grounds of lack of testamentary capacity and undue influence allegedly exerted by Jacqueline.
Connie later amended her petition to add the law firm and witnesses to the will as defendants. She alleged these parties had conspired to commit fraud regarding the drafting, execution, and probate of Eugene’s 2018 Will. She also asserted claims for fraudulent transfer, conversion, and unjust enrichment.
The law firm defendants filed a motion to dismiss under the TCPA and for sanctions under Chapters 10 and 27 of the Texas Civil Practice and Remedies Code. The probate court granted their motion, dismissing all of Connie’s claims against all defendants and awarding sanctions against both Connie and her attorney. Connie appealed this ruling.
Understanding the TCPA’s Framework
The Texas Citizens Participation Act, found in Chapter 27 of the Texas Civil Practice and Remedies Code, was designed to protect citizens who petition or speak out on matters of public concern from retaliatory lawsuits intended to silence them. The TCPA creates a mechanism for early dismissal of lawsuits that appear to stifle a defendant’s exercise of these protected rights.
Courts follow a three-step analysis when evaluating a motion to dismiss under the TCPA. First, the movant must demonstrate that the legal action is based on or in response to the movant’s exercise of a protected right, such as the right to petition. Second, if the movant meets this burden, the nonmovant must establish by clear and specific evidence a prima facie case for each essential element of their claim. Third, even if the nonmovant satisfies this burden, the court must still dismiss the action if the movant establishes a valid legal defense.
The TCPA defines the “exercise of the right to petition” broadly to include “a communication in or pertaining to a judicial proceeding.” A “communication” is similarly defined broadly as “the making or submitting of a statement or document in any form or medium.” When these definitions are combined, the TCPA applies to legal actions against parties based on statements or documents submitted in or pertaining to a judicial proceeding.
The statute includes important exemptions that limit its reach. Section 27.010(a)(12) of the Texas Civil Practice and Remedies Code specifically exempts “a legal action based on a common law fraud claim” from the TCPA’s application. This exemption plays a role in determining which probate claims can be dismissed under the statute.
Why Timing Determines TCPA Applicability
The appeals court drew a line between conduct occurring before any judicial proceeding began and conduct during an actual pending proceeding. This timing distinction determines whether the TCPA applies to probate fraud claims.
The court cited In re Estate of L.R.M., where the Corpus Christi Court of Appeals concluded that an attorney’s filing of an application to probate a will and statements made during probate proceedings constitute “the making or submitting of a statement or document in or pertaining to a judicial proceeding.” Such actions fall within the TCPA’s definition of the exercise of the right to petition.
However, the court reached a different conclusion regarding actions taken before any judicial proceeding began. Claims related to the preparation and execution of estate planning documents fall outside the TCPA’s scope. Although these actions involve making or submitting statements or documents, there was no pending judicial proceeding when the conduct occurred.
This timing distinction creates a dividing line for determining the TCPA’s applicability in probate cases. Actions taken during the preparation and execution of wills—before any probate proceeding is initiated—are not subject to dismissal under the TCPA. In contrast, actions taken during the probate proceeding itself, such as filing documents with the court or making statements during hearings, potentially trigger the TCPA’s protections.
How the Common-Law Fraud Exemption Protects Victims
Even when the TCPA might otherwise apply to certain claims, Section 27.010(a)(12) specifically exempts “a legal action based on a common law fraud claim” from the TCPA’s application. This exemption protects fraud victims in probate cases.
The exemption extends beyond standalone fraud claims to include causes of action that require proof of common-law fraud as part of their elements. In this case, Connie’s claims for conspiracy to commit fraud, conversion, and unjust enrichment all stemmed from allegations that the defendants participated in the fraudulent drafting and execution of the 2018 Will.
The appeals court determined that these claims, even if they formed the basis of statements or actions undertaken during the probate proceedings, remained exempt from the TCPA because they were based on allegations of common-law fraud. This important exemption prevents defendants from using the TCPA to dismiss fraud-based claims even when those claims relate to statements made during judicial proceedings.
The court distinguished statutory fraud claims from common-law fraud claims. While Connie’s claims based on common-law fraud were exempt from the TCPA, her cause of action under the Texas Uniform Fraudulent Transfer Act (“UFTA”) was a statutory fraud claim that allegedly occurred during the probate proceedings. Therefore, the TCPA could potentially apply to that specific cause of action.
Common-law fraud requires proof of several elements: a material misrepresentation, knowledge of its falsity or reckless disregard for the truth, intent that another rely on the misrepresentation, justifiable reliance by the injured party, and resulting injury. These elements distinguish common-law fraud from statutory fraud schemes that may have different requirements or remedies.
The Takeaway
This case explains when the TCPA can and cannot be used to dismiss probate fraud claims. The appeals court says that timing and the type of fraud alleged determine whether defendants can secure early dismissal through anti-SLAPP motions.
The TCPA can potentially dismiss some probate claims when the challenged conduct occurred during the actual probate proceeding (like filing documents with the court), the claims are based on statutory fraud (not common-law fraud), and the defendants properly file a timely TCPA motion.
The TCPA cannot dismiss probate claims when the alleged misconduct happened before any court proceeding began (like drafting or executing the will), the claims are based on common-law fraud (which has a specific exemption).
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Disclaimer
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.
