Will the Appellate Court Enforce a No Contest Clause?


When a loved one passes away, his or her will may become an object of contention among friends, family, and other parties. Emotions might become the driving seat, but in this blog post we discuss the importance of facts and the law, as well as maintaining a “good faith” posture vis-à-vis any will contest. Remember that every situation is unique, and if you are having issues concerning a will under Texas law, please reach out for an initial phone consultation

In a recent post, we highlighted a recent Burdette & Rice victory in the Fort Worth Court of Appeals. That case, like many others that our clients bring to us, involved a Will, a Will Contest and some very frustrated parties.

Shortly after the Decedent’s death, his Will was offered for probate by one son. The second son opposed the Will’s admission. Maintaining the lawsuit without any good reason meant risking his inheritance under the Will. Eventually, he dropped his lawsuit after getting the chance to learn more about the Decedent and the Will through the evidence. But the Executor tried to punish him anyway, and withheld his inheritance from the second son for years.

Contest a Will under Texas Law - Dallas Probate AttorneysBurdette & Rice earned a victory for the second son at the trial court. On appeal, the second son prevailed again. What is interesting about the appellate opinion is not the result – that’s just the court recognizing what the law is in Texas. Instead, the real story is in the written opinion of the judges themselves, and it will be very interesting to see how future litigants will try to use the law stated in the opinion for their own cases.

The appellate court focused on the intent of the second son that filed his opposition to the Decedent’s Will. The threshold question became, “Was he trying to thwart the [Decedent’s] intentions?” The court concluded that he wasn’t, in part because he testified that he was actually trying to learn his father’s true intentions through the lawsuit. The court reasoned that a person who brought a lawsuit to ascertain the real purposes and intentions of a decedent was not necessarily trying to thwart them.

Frankly, this analysis seems incredibly forgiving, and that’s coming from the law firm very happy with the result we obtained for our client. But the approach by the court of appeals highlights some other considerations that I feel probably guided the justices. The second son clearly demonstrated that he filed and maintained his lawsuit in good faith – whatever the reason might have been. He filed the lawsuit based on the facts that he knew and the reasonable inferences he could draw from them. When he learned the facts were different, he dropped the lawsuit. In sum, he did everything that a responsible litigant can do, and he knew when to call it quits. I think that the court of appeals recognized this and knew what their result would be before ever giving reasons in support of it.

Lots of lessons can be learned from this case, but maybe the most important one is to maintain your “good faith and just cause” in Will Contests. Move aggressively on the facts and law, but don’t get so tied to those assumptions that you fail to recognize bad facts or bad law when they come your way. When the courts have a chance to reward good behavior, it appears they’ll take it.


After the death of a loved one, issues of their last will and testament may come to the fore. In some cases, emotions and disputes may arise up to and including legal action. In all cases, the facts, the Law and good intentions should guide one’s outlook. Remember that every situation is unique, so please reach out for an initial phone consultation with one of our attorneys concerning any issues involving a last will and testament. Our convenient Dallas location in combination with the telephone and Internet mean that we can help nearly anyone who has issues concerning will contests in greater Dallas, Fort Worth, or indeed the entire state of Texas.