in the Matter of the Estate of Willard O. Allen
407 S.W.3d 335
| Tex. App. | 2013Background
- Este is an appeal from a trial court order admitting a will to probate as a muniment of title.
- Appellant Willard Miles Allen challenged the probate on the ground that Jo Ann Allen was in default for not timely offering the will for probate under Texas Probate Code § 73(a).
- The trial court found Jo Ann Allen was not in default and admitted the will to probate.
- Willard O. Allen died in 2005; his wife Jo Ann Allen filed an affidavit of heirship and later sought probate by muniment of title in 2010 after discovering a possible issue with the affidavit.
- The affidavit of heirship did not specify whether property was community or separate; the attorney who prepared it attached a copy of the will.
- The trial court concluded the proponent was not in default and that the will could be probated as a muniment of title despite the lapse of four years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence supports the trial court’s finding of no default. | Allen contends Jo Ann was in default for failing to probate within four years. | Allen asserts evidence shows lack of diligence; trial court should have found default. | No error; evidence supports no default. |
Key Cases Cited
- In re Estate of Perez, 324 S.W.3d 257 (Tex. App.—El Paso 2010) (sufficient excuse to admit after four years; reliance on counsel)
- Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App.—San Antonio 1978) (belief probate unnecessary can excuse delay)
- Chovanec v. Chovanec, 881 S.W.2d 135 (Tex. App.—Houston [1st Dist.] 1994) (evidence may raise material fact issue on default)
- Perez v. Perez (Poppe cited), (see Perez above) (-) (counsel reliance and belief probate unnecessary)
- Poppe v. Poppe, No. 01-08-00021-CV, 2009 WL 566490 (Tex. App.—Houston [1st Dist.] 2009) (reversed summary judgment; reliance on counsel)
- Brown v. Byrd, 512 S.W.2d 753 (Tex. Civ. App.—Tyler 1974) (long lapse considered in default analysis)
- In re Estate of Rothrock, 312 S.W.3d 271 (Tex. App.—Tyler 2010) (court noted factors affecting default analysis)
- Armendariz De Acosta v. Cadena, 165 S.W. 555 (Tex. Civ. App.—El Paso 1914) (early view on probate and related verbal agreements)
- House v. House, 222 S.W.322 (Tex. Civ. App.—Texarkana 1920) (reliance on counsel varies by facts)