Your parent dies and you and your sibling are on good terms. There is a will. You agree that the will is valid. Your sibling is named as the executor in the will. To help facilitate and speed up the probate of the will, you sign a waiver consenting to the will being probated. This is a common situation in Texas probate cases.
But imagine then that you later changed your mind, believing that an earlier will for your parent was the operative will. You file a will contest. Even though you signed a waiver, you file a will contest to contest the second will. Is your belief that the first will is the valid will enough to throw out the second will that was admitted to probate?
The recent In re Estate of Johnson, No. 05-23-00087-CV, 2024 WL 4595140 (Tex. App.—Dallas Oct. 28, 2024) addresses this. It explains whether one can contest a will after having signed a waiver consenting to the will being admitted to probate.
Facts & Procedural History
The decedent died on August 20, 2020, in Dallas County. Following her death, her daughter filed an application for a court-created independent administration with will annexed. This was for a will dated May 24, 2018. This will divided the decedent’s property between the daughter and her brother.
The son signed a “308 Waiver and 401 Agreement to a Court Created Independent Administration.” Through this document, the son expressly waived “notice of service and objections in this matter” and consented to his sister serving as independent administrator of their mother’s estate.
On November 4, 2020, the probate court held a hearing on the application. During this proceeding, the court heard testimony from Martha Brown, who had witnessed the will’s execution, and from the daughter. Based on this evidence, the court admitted the will to probate and appointed the daughter as independent administrator.
In March 2021, the son joined with three other interested parties to file an “Objection to [the daughter’s] Appointment and Will Challenge.” By March 2022, an amended will contest pleading had been filed alleging the decedent had not personally signed the May 24, 2018 will. The contestants further claimed that an earlier holographic will dated April 12, 2018 represented the decedent’s true testamentary intent.
After the original will was admitted to probate, the daughter, acting as independent administrator, sold a property from the estate to a business. The probate court subsequently ruled in favor of the will contestants. It set aside the probate of the May 24, 2018 will, removed the daughter as administrator, and voided the property sale to the business.
This decision prompted the daughter and the business to appeal to the Dallas Court of Appeals.
Texas Will Validity Requirements
The Texas Estates Code sets out the requirements for a valid will. Specifically, Section 251.051 of the code says that a will must be: (1) in writing, (2) signed by the testator, and (3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator’s presence.
These formal requirements serve several important purposes. First, they help ensure that the document accurately reflects the testator’s true intentions. The writing requirement provides a permanent record of these intentions, while the signature requirement confirms the testator’s approval of the document’s contents. The witness requirement helps prevent fraud by providing independent verification that the testator knowingly and voluntarily executed the will.
For holographic wills, the Texas Estates Code provides an exception to the witness requirement. Under Section 251.052, a will written wholly in the testator’s handwriting is valid without witnesses. However, the entire will must be in the testator’s handwriting–a requirement that becomes significant in the Johnson case, as the contestants initially attempted to rely on an unwitnessed April 12, 2018 will that the court found invalid.
When a will meets these requirements and is properly executed, it creates a presumption of validity that contestants must overcome with specific evidence. This presumption is stronger once a will has been admitted to probate following a court hearing where evidence was presented to support its validity.
Waiver of Will Contest Rights Under Texas Law
The Texas Estates Code includes provisions allowing interested parties to waive certain rights in probate proceedings. These waivers are routinely filed in probate cases in Texas, particularly in families where relationships remain amicable after a death.
Section 308.054 of the Texas Estates Code specifically addresses waivers of notice. This provision allows heirs, devisees, or other interested persons to waive notice of the probate proceedings by filing a written waiver with the court. Similarly, Section 401.003 permits heirs to create independent administrations by agreement, streamlining the probate process when all parties consent.
These waiver provisions offer significant benefits. They reduce court involvement, decrease expenses for the estate, and accelerate the administration process. In uncontested estates, these waivers prevent unnecessary procedural hurdles that would otherwise delay distribution of assets to beneficiaries.
However, the code does not explicitly address whether or under what circumstances such waivers can be retracted or overcome. This gap leaves room for judicial interpretation, as demonstrated in this court case.
Can Waivers Constitute Judicial Admissions?
The appellants in this case argued that the son’s waiver constituted a quasi-admission that should be treated as a judicial admission. This distinction raises important questions about the evidentiary weight of formal waivers in probate proceedings.
Judicial admissions differ from ordinary evidence in that they conclusively establish a fact and prevent the introducing party from offering contradictory evidence. As the Dallas Court of Appeals noted in Yost v. Jered Custom Homes, 399 S.W.3d 653, 663 (Tex. App.—Dallas 2013, no pet.), a judicial admission is “a formal waiver of proof that dispenses with the production of evidence on an issue.”
For a statement to qualify as a judicial admission, it must generally be clear, deliberate, and unequivocal. Once established as a judicial admission, a statement binds the party who made it, and the fact-finder must accept it as true so long as it remains unretracted.
The Johnson court did not definitively decide whether the son’s waiver constituted a judicial admission. However, it noted that even if the waiver qualified as such, the son effectively retracted it by filing objections. This retraction would nullify any binding effect the admission might have had.
This analysis suggests that while waivers may potentially qualify as judicial admissions in Texas probate proceedings, they remain subject to retraction. The court’s approach balances respect for formal statements against the flexibility needed in probate matters, where new information may emerge after initial proceedings.
What Evidence Can Overcome a Prior Waiver?
So what is the evidentiary standard required to overcome a prior waiver in Texas will contests? While the court did not establish a bright-line rule, its analysis identifies several factors that should be considered.
In evaluating legal sufficiency, Texas courts apply the standard established by the Texas Supreme Court in City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). Under this standard, courts must “credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Evidence that creates “mere surmise or suspicion” fails to meet the legal sufficiency threshold.
In this case, the son testified that he witnessed his sister present a document for witnesses to sign in a parking lot after their mother’s death. He also claimed familiarity with his mother’s signature and asserted that the signature on the May 24, 2018 will was not genuine.
The court found this testimony legally insufficient for several reasons. First, the son admitted knowing all the facts he later used to contest the will before signing his waiver in October 2020. Second, in that waiver, he made affirmative representations that his mother “left a valid written Will dated May 24, 2018” that “was never revoked.” He also acknowledged receiving copies of the will and other filed documents, affirming that “each statement contained therein is true and correct.”
Given these circumstances, the court concluded the son’s testimony raised, at most, “surmise or suspicion,” falling short of the legal sufficiency standard. The court emphasized that when someone acknowledges a will’s validity through formal statements, later contradictions require substantial, not speculative, evidence.
This analysis suggests that to overcome a prior waiver, a contestant must present evidence that:
- Was unknown when they executed the waiver
- Rises above mere speculation or suspicion
- Directly contradicts prior representations in a substantial way
The timing of evidence acquisition appears particularly significant. By highlighting that the son knew the relevant facts before executing his waiver, the court implied that newly discovered evidence might justify retracting a waiver in some circumstances.
Shifting Burdens in Will Contests After Probate
This case also addresses the burden allocation in Texas will contests. The court specifically noted that the trial court erred by “shifting the burden from the will contestants to the original will proponents.”
This observation highlights a fundamental principle in Texas probate law: once a will has been admitted to probate following the presentation of evidence supporting its validity, the burden shifts to contestants to prove it should be set aside. Citing Estate of Bedell, No. 04-14-00564-CV, 2016 WL 416374, at *1 (Tex. App.—San Antonio Feb. 3, 2016, pet. denied), the court emphasized that a court considering a will contest may not require that will formalities be re-proven as a precondition to denying a contest.
This burden-shifting approach serves important policy goals. It provides finality to the probate process, protects the presumed intent of the testator, and prevents repeated challenges that could delay estate administration indefinitely.
The Takeaway
This case shows that formal waivers in probate proceedings carry significant weight but are not absolutely irrevocable. A party seeking to overcome their prior waiver faces a substantial evidentiary burden if they possessed all relevant information before executing the waiver.
Do you need help with a probate matter in San Antonio or the surrounding area? We are San Antonio probate attorneys. We help clients navigate the probate process. Call today for a free confidential consultation, (210) 239-8518.
Our San Antonio Probate Attorneys provide a full range of probate services to our clients, including helping with will contests. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.
Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
