This Week in Probate Appeals: Failure to File a Will

The Texas Probate Code tells us that, generally speaking, the time within which a Will must be filed for admission to probate is four years from the date of death.  The statute exists to induce the production of Wills – we generally don’t like it when Wills are kept secret.  If a Will is filed for admission to probate after those four years, the person offering it must also demonstrate that they are not “in default” for failing to bring the document to the Court’s attention in the first four years.


Plenty of cases have involved this four-year rule, and from these cases and the Probate Code, we know that “default” means failure because of the absence of reasonable diligence.  Reasonable diligence, in turn, is obviously very fact-specific.  So, we have a number of cases in Texas where proponents of Wills are either found “in” or “not in” default based upon some pretty unique circumstances.  Generally speaking, our Courts are very liberal on the issue, and most good reasons are acceptable.


Today, the Eleventh Court of Appeals issued its opinion in a case on the issue.  In the Matter of the Estate of Willard O. Allen, Deceased, No. 11-11-00131-CV, is a case out of Coleman County.  Jo Ann and Willard Allen married in 1949 and had four children.  Willard died in 2005, having executed a Will in 1976, leaving everything to Jo Ann.  Jo Ann, 75 at the time, spoke with a local attorney about what to do next.


Two options seemed reasonable and were believed to be effectively identical – probate the Will as a muniment of title, or record an Affidavit of Heirship.  Both options would lead to the same result, Jo Ann was told.  Jo Ann, who had no legal training of her own, chose the more economical of the two and recorded an Affidavit of Heirship.  She attached a copy of the un-probated Will to the Affidavit.


In 2010, five years after Willard’s death, Jo Ann and her son got into a dispute about her son running cattle on what was discovered to be Willard’s separate property.  She asked him to move the cattle and he refused.  Jo Ann went to a different attorney and was probably shocked at what she learned.  While the Will would have given Jo Ann 100% of Willard’s property, the Affidavit of Heirship resulted in Jo Ann receiving only her statutory 1/3 life estate in Willard’s separate property.


Jo Ann immediately filed the Will for admission to probate as a muniment of title.  After a trial, the Court admitted the Will to probate and issued a finding that Jo Ann was not “in default” for failing to offer the Will in the four years since Willard’s death.  Jo Ann’s son appealed.


When it affirmed the trial court, the Eleventh Court of Appeals supported its reasoning with a terrific synopsis of some of the best examples of default cases in Texas.  Ultimately, the Court found that Jo Ann’s reliance on the advice of her first attorney was not the “absence of reasonable diligence.”  Jo Ann’s case, like a growing list of others, will undoubtedly be cited in the future in support of ordinary people reasonably relying upon the advice of their attorneys, rather than trying to hide or conceal the Decedent’s last wishes.