When a will is probated it is declared as valid and the executor is given permission by a court to distribute assets according to the provisions of the document. What happens when a will made later in time that revokes the previously probated will is sent to a court for probate? Estate of Morris explains this predicament.

Probate Case: Can a will be revoked after death if executed?

Estate of Morris, 577 S.W.3d. 748 (Tex. Civ. App. 1979), writ refused NRE (June 13, 1979)

Facts of the Case: Circumstances for Revoking a Will

Margaret Jane Morris died April 1, 1975. She had executed a will on November 19, 165 which left her property to her husband Henry M. Morris. Henry M., being the executor of the will, was in charge of submitting the will for probate to have it authenticated by a court and be approved as the person to distribute his wife’s assets. On April 29, 1975, the order was made that admitted the will to probate and decreed that Henry M. would receive letters testamentary meaning he was approved as executor to gather and distribute his wife’s assets.

Nearly two and a half years later, on September 16, 1977, Becky Jean Woodward Whitaker, Margaret Jane and Henry M. Norris’ daughter, filed an application for probate of a different will that was not produced in court. Becky sought the probate of a will made on March 22, 1968 by her mother as well as the issuance of her letters testamentary. The 1968 will provided that all previous wills were revoked, Henry M. was to receive one dollar, the remainder of her estate was divided and given to Margaret’s two children Henry Lee Morris and Becky Jean, and that Becky Jean was to be the executor of the will. In her application for probate, Becky Jean alleged that the 1968 will was destroyed after her mother’s funeral by Henry Lee who stated that the later will would upset their father. She further alleged that the 1968 will specifically revoked the 1965 will and the probate of the 1965 will should be set aside and held for naught meaning it would be canceled.

Henry M. opposed the probate of the 1968 will alleging that Becky Jean is prevented from making the application by a two-year limitation period for contesting the already probated 1965 will, that she is estopped (precluded by a previous action or statement) by her knowledge and actions from asserting the 1965 is not the last will and from offering the 1968 will for probate, and that she is bound by an agreement with Henry Lee to destroy the 1968 will.

A jury found that Becky Jean and Henry Lee agreed not to offer the 1968 will for probate, and that the agreement was made for the benefit of their father Henry M. The jury did not find that Becky Jean knew her father was relying on the belief that the 1965will was the last will of her mother, or that Becky Jean unreasonably delayed offering the 1968 will for probate, or that Becky Jean had waived her right to probate the 1968 will. The trial court accepted the verdict of the jury and found that as a matter of law, the 1968 will meets the requirements of the court and it does revoke the prior wills. The court set aside the probate of the 1965 will, denied the probate of the 1968 will and letters of testamentary to Becky Jean, and decreed that the estate of Margaret Jane pass according to the laws of intestate succession meaning the court decides how to distribute Margaret Jane’s property. Henry M. and Becky Jean both appealed.

The court of appeals found that the 1968 will should be admitted to probate and the probate of the 1965 will should be set aside. They also found that because the 1968 will should be admitted to probate that Becky Jean was also entitled to receive letters testamentary.

What This Case Means: Revocation form

Statute of Limitations

One of Henry M.’s arguments against the probate of the 1968 will is that the time frame in which Becky Jean applied for probate exceeded the two-year statute of limitations. This two-year statute of limitations applies only to situations in which a person is challenging an already probated will. Henry M. argues that because the 1968 will revokes the 1965 will, her action is a challenge and a direct attack on the 1965 will. However, the court of appeals did not see it this way. They found that the purpose of Becky Jean seeking an application to probate the 1968 will is not to challenge or contest the 1965 will, it is merely to probate the 1968 will. Although when probated, the 1968 will does revoke the 1965 will, Becky Jean is not contesting the 1965 will she is simply seeking to secure the probate of a later will.

For the two-year statute of limitations applied, Becky Jean’s actions must constitute a direct attack on the previously probated will, and the court of appeals found that it did not. Because her purpose is to probate a later will, the statute of limitations is longer. To probate a will after someone’s death there is a four-year statute of limitations, and Becky Jean acted after 2 years and 5 months meaning she was within the time frame of the statute of limitations and this argument by Henry M. was invalid.


Another one of Henry M.’s arguments was that Becky Jean acted with knowledge of the 1968 will at the time the 1965 will was probated. This meant that when the 1965 will was probated he was relying to his detriment on the fact that the 1965 will was the last will made by Margaret Jane. To prove estoppel, Henry M. must prove that Becky Jean made false representations to him or concealed important facts from him, she had knowledge of those facts while he was without knowledge or a way to gain knowledge of those facts, with the intention that it should be acted on, and that he relied on or acted on it due to his misunderstanding of the situation.

Becky Jean argues against this accusation saying she never agreed with Henry Lee to destroy the 1965 will, and she could not think of anything to do to keep him from destroying it. She acknowledged that she knew of the existence of the 1968 will both before and after she knew Henry M. was going to probate the 1965 will, and she did not tell her father there was a later will. Although these elements of estoppel were proven true, the court found that there was still not enough evidence to conclusively establish every element of estoppel. The court could not find any evidence that Becky Jean intended that her father would act upon her conduct, and therefore, estoppel could not be proven, and Becky Jean was not estopped from probating the 1968 will.

Implied Agreement

Henry M. also argues that there was an implied agreement for the distribution of the estate between Becky Jean and Henry Lee to follow the provisions of the 1965 will because both were aware of the existence of the 1968 will. Although they might not have known exactly how the property was to be distributed under the 1965 will, they were aware that the 1968 will would destroy the previous will’s contents. For a court to find that an implied agreement exists and subsequently write a contract for one, they must find that an agreement for the disposition of the property was so clearly and obviously within the contemplation of Becky Jean and Henry Lee that they deemed it unnecessary to express it.

The court of appeals found that there was no evidence to suggest that the two were in agreement about the disposition of the property. The court also found that the destruction of the will by Henry Lee was not to secure a certain disposition of the property. For these reasons, the court of appeal could not write a contract for an implied agreement, and the 1968 will was found to be valid.

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Related Questions

What voids a last will and testament or an old will?

If you make a new will, it revokes any wills you made before. This includes a probated will, which is a will that has been approved by a court. Voiding an unsigned will is not something the court would do. The only way a will can be voided is if it’s signed and does not include the required elements.

Can I cancel a will? Can a codicil revoke an entire will?

If you make a new will, it revokes any wills you made previously. This is true even if your new will only partially revokes your old will, or if your new will only revokes part of your old will.

How long is a will valid after death?

A will is valid after death if it was executed while the deceased person was alive. The validity period of a will is not based on its longevity, but on the conditions in which it was created. A will becomes invalid once these conditions are no longer met.

How long is a will good for?

A new will generally revokes a previously probated will. However, there are some exceptions to this rule. If the new will is executed in accordance with the laws of the state in which the testator resides, and the new will specifically revokes the old will, then the old will is no longer valid.

What makes a will null and void?

A probated will is a will that has been approved by a court. If you make a new will, it will revoke any probated wills that you have. If the will doesn’t have a signature or is witnessed incorrectly, the court will not approve it.

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