Mary Ann Orr and Charlotte Orr v. Lucy Ann Walker
2014 Tex. App. LEXIS 6121
| Tex. App. | 2014Background
- Fannie Mable Walker died in 1992 leaving an unprobated will naming her son Kenneth as executor.
- Marguerite (Fannie’s daughter) discovered Fannie’s will after Marguerite’s death in 2006; Marguerite’s daughters Mary Ann Orr and Charlotte Orr learned of the will then.
- Charlotte sent a copy of the will to Kenneth in 2007; Kenneth died in 2009 and his wife Lucy Ann Walker became executor of his estate.
- Mary filed to probate Fannie’s will in July 2012 — more than four years after Fannie’s death and nearly five years after Mary knew of the will.
- Lucy opposed, arguing Mary (and Marguerite before her) defaulted by failing to timely probate; the trial court denied probate and denied consolidation; appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was legally and factually sufficient to show Mary was not in default under former Tex. Prob. Code §73 | Mary: She was not in default and had standing to probate; time to act ran from executor’s death | Lucy: Mary (and Marguerite) were in default for failing to probate within four years; Marguerite’s default should be imputed to Mary | Court held evidence sufficient to find Mary/Charlotte were in default for waiting nearly five years after discovery; petition denied |
| Whether the trial court improperly relied on Lucy’s testimony | Mary: Court improperly relied on Lucy’s testimony | Lucy: Testimony was admissible and probative | Court declined to reach this issue because ruling doesn’t depend on testimony unique to Lucy |
| Whether trial court abused discretion by denying motion to consolidate probate matters | Mary: Consolidation was proper and denial was error | Lucy: Denial proper given underlying probate denial | Court held consolidation issue moot because probate denial affirmed |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (standards for legal-sufficiency review)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (burden on party attacking legal sufficiency to show evidence conclusively establishes opposite)
- Cain v. Bain, 709 S.W.2d 175 (standard for factual-sufficiency review)
- Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (appellate court cannot act as factfinder in factual-sufficiency review)
- In re Estate of Cornes, 175 S.W.3d 491 (definition of "default" as lack of reasonable diligence)
- Schindler v. Schindler, 119 S.W.3d 923 (authority holding heir’s default may bar descendants)
- In re Estate of Campbell, 343 S.W.3d 899 (authority holding another’s default does not necessarily preclude non-defaulting applicant)