Will Contests Generally

Statute of Limitations

Stovall v. Mohler, 100 S.W.3d 424 (Tex. App.—San Antonio 2002, pet. denied).


Decedent died in 1996. On March 24, 1997, a document purporting to be Decedent’s 1993 will was admitted to probate. Daughter contested the will asserting that it was a forgery and that an earlier will, from 1986 or 1989, should be probated instead. Granddaughter was joined as a party and later non-suited from the case. On February 22, 1999, the court determined that the will was a forgery and that the other two wills did not exist. Accordingly, Decedent died intestate.

In 2000, Granddaughter filed an application to probate the 1986 will or, in the alternative, the 1989 will. Daughter obtained a summary judgment that Granddaughter’s action was precluded as a matter of law under Probate Code §§ 73 & 93. Granddaughter appealed.

The appellate court affirmed. Granddaughter argued that the two year period to contest a will found in Probate Code § 93 did not apply because the 1993 will was not actually admitted to probate because it was later found to be a forgery. The court rejected this argument and determined that the language in § 93 which provides that the limitations runs “after a will has been admitted to probate” applied because the 1993 will was technically admitted to probate even though it was later found to be invalid. The fact that the 1993 was later determined to be a forgery did not negate the fact that it was initially admitted to probate.

Moral: A will proponent should timely (within two years) attempt to probate a will if the proponent is dissatisfied that another will has already been admitted to probate.