Estate of Rhoades, 502 S.W.3d 406 (Tex. App.—Fort Worth 2016, pet. denied).
After the probate court set aside an order
admitting Testatrix’s will to probate, the court granted a summary
judgment construing the dispositive provisions of the will. The
appellate court determined that the probate court nonetheless had
jurisdiction to construe the will and that its judgment was not merely
an advisory opinion.
The court reported that there is “sparse case law”
on whether a will must be currently admitted to probate before the court
may construe it. However, the court explained that “in practice, Texas
courts have construed wills under the [Uniform Declaratory Judgments
Act] before, during, and after admitting the will to probate.”
Rhoades at *2.
Moral: Once a proponent presents a will to
the court for probate, the court may construe the will even if it is not
yet admitted to probate.
Testatrix’s will devised her (1) “residential
homestead” (2) “personal property,” and (3) “all the rest of my estate”
to Beneficiary who predeceased Testator. The will provided that if
Beneficiary died first, Alternate Beneficiary would receive “his
portion” of property. This language is found only in the clause granting
the rest of the estate and not in the clauses devising the homestead or
bequeathing the personal property. The will also provided for property
not otherwise gifted to pass to Testatrix’s Heirs. Alternate Beneficiary
claimed she was entitled to the entire estate while Heirs asserted that
they should receive the homestead and the personal property with
Alternate Beneficiary receiving only the Testator’s non-homestead real
property. The appellate court agreed with the latter interpretation as
being the only way of harmonizing all of the dispositive provisions. A
dissenting justice agreed with the Alternate Beneficiary’s claim that
she was entitled to Testatrix’s entire estate.
Moral: A will should be carefully drafted
and proofread. Testatrix’s will is an example of very sloppy drafting.
For example, in two of the dispositive provisions, the distribution is
to be made in “equal shares” even though only one beneficiary is named.