The Probate Wars


Although Estates Code Section 55.001 is only two sentences long, it has spawned hundreds of court cases and been cited in more than 70 appellate decisions.

Entitled “Opposition in Probate Proceeding”, the section reads as follows: “A person interested in an estate may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue. The person is entitled to process for witnesses and evidence, and to be heard on the opposition, as in other suits.”

And so begins the mud-slinging, resulting in some pretty interesting cases.

Appellate judges are well versed in distilling unsavory facts into pithy summaries.   In 1956, the San Antonio court had to decide if the testator had capacity when he signed his will: “The evidence about testator’s drinking habits, his coherence, and his intelligibility was sharply disputed. The wide variance in the opinions of the witnesses is perhaps explained by one of the testator’s brothers, who stated that testator was successful in business and unsuccessful in marriage.”

The Texarkana court threw out a hand-written Will when it determined that the testator had done it just to get his wife off the “warpath.” The Corpus Christi court tossed a will that had been prepared by the testator’s much younger second wife, a “several-time-divorcee,” who had filled in the blanks of a form and given it to her husband to sign the day before he underwent major surgery. The Dallas court, however, upheld a will despite a “black widow” allegation involving a second wife who had married the testator 7 weeks after he was diagnosed with bone marrow cancer.

The Courts have steadfastly declined to hold that a testator who is dying, aged, infirm, sick, on pain medication, mean, criminal, uncouth, coarse, or dishonest cannot execute a valid Will.   The Courts have also strongly supported a testator’s right to disinherit a spouse, children, grandchildren, and any other relatives.

It is well known in probate law that where there is money, there is conflict. Section 55.001 just opens the door; it’s up to disappointed heirs and beneficiaries to walk through it.

Hammerle Finley Law Firm-give us a call. We can help.