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Estate Administration

Appeal

Conflicting Probate Applications

    In re Estate of Gomez, 161 S.W.3d 615 (Tex. App.—San Antonio 2005, no pet. h.).

    Proponents attempted to probate Testator’s will executed in 1991.  Contestants claimed that Testator executed a new will in 2000 which revoked the 1991 will.  Proponents responded that the 2000 will was invalid because Testator lacked testamentary capacity and was subject to undue influence.  The probate court agreed with Proponents that the 2000 will was invalid but did not rule on the validity of the 1991 will.  Contestants appealed but then sought to abate the appeal.  The court ordered briefing on the issue as to whether the probate court’s order was appealable.

    The court held that the probate court’s order was not appealable.  The court began its analysis by quoting the Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995), test for determining whether a probate court order is appealable:

If there is an express statute * * * declaring the phase of the probate proceeding to be final and appealable, that statute controls.  Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of the proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

    The court explained that Probate Code § 83(a) governs the procedure to be followed when there is a second application for the probate of a will when the original application has not yet been heard, that is, “the court shall hear both applications together and determine what instrument, if any, should be admitted to probate.”  This provision is an example on an “express statute” in the Crowson test and “controls the finality of a judgment when two competing will applications are pending because it dictates the procedure to be followed by the trial court.”  Gomez at 616.  Because the probate court had not yet ruled on the validity of the 1991 will, the court held that the judgment denying the application to probate the 2000 will was not yet appealable.

    Moral:  If applications to probate two wills are pending simultaneously, a decision that one will is invalid is not appealable if the court has not yet ruled on the validity of the other will.

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