Venue refers to the court in which a proceeding takes place. A party may want to transfer venue for a number of reasons including convenience, type of court, or possibly because the original venue lacks the jurisdiction/ability to hear the case. A person’s domicile is their permanent place of residence. How is domicile established? When can a venue transfer in probate court take place and what can prohibit a venue transfer from taking place? In re Graham answers these questions.

Probate Case

In Re Graham, 251 S.W.3d 844 (Tex. App. 2008)

Facts of the case:

Dianne Hanks Graham died on January 16, 2006, in Travis County. Her will was filed for probate by her mother, Freda Nutt Hanks, in Tom Green County. Hanks and her grandson Preston each executed an affidavit which stated that the deceased, Graham, was domiciled (lived) in this county at the time of death and that her main property was also located there. On March 15, 2006, Hanks disclaimed her interest in Graham’s estate meaning that she gave up legal claim to the estate. This meant that all of Dianne’s estate would go to her two sons Preston and Barclay. Barclay passed away in October 19, 2006 and on April 19, 2007, Hanks filed suit seeking for her disclaimer to be found invalid. The constitutional county court transferred this case to County Court No.2 of Tom Green County, and Preston moved to transfer the venue for all of the probate proceedings from Tom Green County to Travis County asserting that Graham was domiciled in Travis County at the time of her death.

Preston’s original request was denied, but upon appeal the court found that there was insufficient evidence that Graham was domiciled in Tom Green County at the time of her death, and there was sufficient and conclusive evidence that her domicile was in Travis County. The court of appeals found the trial court had abused its discretion and granted Preston a writ of mandamus or court order directing the county court to transfer the case to Travis county. The writ was conditional, however, as it would only take action to direct the county court to transfer if the trial court failed to act accordingly with the court of appeal’s opinion.

What this case means

Venue transfer:

Venue can be transferred to a more convenient forum or to a forum that would make more sense for the case. Here, if it was found that Graham’s domicile was in Tom Green County, a venue transfer would not be necessary for a quick and expedient case. However, because it was found that her domicile was in Travis County, the courts and parties would favor having the trial there because typically there would be more evidence that is pertinent to the case in Travis County. However, venue transfer can be denied, even if it makes sense to transfer, if a part has waived their right to transfer venue.

Here, it was argued Preston waived his right to venue transfer when he signed he affidavit stating that Graham lived in Tom Green County at her death. Preston argues, however, that he did not read the affidavit before he signed it which was carefully due to the shock of his mother’s death, and he only signed it at the request of Hanks. It is also stated that at the time he signed the affidavit he was not a party to the proceeding, and an admission of fact such as Graham’s domicile can only come from a party making that statement. This means that because Preston was not a party at the time of signing, he was not making any sort of legal admission as to where his mother lived.


The two essential elements in regarding the establishment of one’s domicile are “residence in fact” and intent “to make the place of residence one’s home.”

“Residence in fact” refers to objective evidence that a person is residing in a place including but not limited to owning property there, having a job there, having a mailing address there, and paying taxes there. Here, the “residence in fact” was proven by the fact that Graham slept, gardened, entertained guests, stored her personal possessions, and generally conducted day-to-day activities in Travis County. In addition to the evidence in favor of Travis County being her home, there was no evidence in regards to the “residence in fact” element that would prove Tom Green County to be her home.

Intent “to make the place of residence one’s home” refers to a slightly more subjective standard. To be domiciled in a place, a person must live there with the intent to stay there. If a person were living in Travis County and had sufficed the “residence in fact” element, but they intended to only stay in Travis County for a Summer, Travis County would not be considered their domicile. Here, evidence was used by Hanks to say that Travis County was not Graham’s domicile because she was remodeling a house in Pecos; however, because there was no evidence to show that Graham intended to leave Travis County to live in the Pecos house permanently, the court found that Travis County is not lost as Graham’s domicile until she had left that residence with no intent to return.

Do You Need to Hire a San Antonio Lawyer to Probate an Estate?

Do you need help with an estate planning or probate matter in San Antonio-metro area or the surrounding communities? We are experienced estate planning and probate attorneys who represent clients with sensitive estate planning and probate matters. If so, please give us a call us at 210-794-7835 or use the contact form on our homepage to see how we can help.

Related Questions

What is the difference between venue and jurisdiction?

Venue and jurisdiction are two words that are often used interchangeably in a legal context. However, they mean different things. Venue refers to the location of the court case. Jurisdiction refers to the authority of the court in which a case is pending. To put it simply, venue is the location of the court case and jurisdiction is the authority of the court. In order for a court to have jurisdiction over a case, there must be some connection between the subject matter of the case and the geographical territory of the court. Often, this connection is based on where the parties to the lawsuit live or where the events in question took place. For example, if two people live in different states and have a dispute, they may file suit in either state. The state where they choose to file suit will then have jurisdiction over their case.

There are also times when venue and jurisdiction may not be related at all. This can happen when federal courts hear cases involving state law or when an international tribunal hears a case that does not involve any specific country’s laws. In these situations, venue is often chosen based on practical considerations, such as which court is most convenient for the parties involved.

Is venue the same as personal jurisdiction?

The venue of a lawsuit is not necessarily the same as personal jurisdiction. Personal jurisdiction is a determination made by the court to make sure that the lawsuit should be heard in a particular court and by a particular judge. Venue is a determination made by the plaintiff’s attorney to determine where to file a lawsuit. A plaintiff’s attorney can file a lawsuit in any venue the attorney chooses, but once the defendant is properly served with process, the case must be heard in the proper venue.

What does venue mean in legal terms? How is it related to Civil Procedure?

In legal terms, venue refers to the geographic location where a court has jurisdiction to hear a case. Venue can also refer to the location where a crime was committed, which may or may not be the same as the court that has jurisdiction over the case. In Texas, venue is governed by the Texas Rules of Civil Procedure.

When might you ask for a change in improper to proper venue? Is it appropriate?

For a Texas Probate Attorney, one of the most common questions we get asked is what can be done when a case is assigned to an inconvenient or inappropriate judge? It is possible, and often happens, that the initial judge assigned to a case may be disqualified from handling the matter, due to a conflict of interest or other reason.

Consider this scenario: a wealthy celebrity dies within the jurisdiction of County X. The Executor of the estate is someone unknown to the majority of the celebrity’s beneficiaries, and is also domiciled in County X. One beneficiary, claiming she has no knowledge of the Executors identity, petitions the court for information about the estate’s assets. The petition is set for a hearing before Judge Y, who presided over the celebrity’s divorce from his second wife ten years prior. At the hearing, counsel for the beneficiary asks Judge Y to recuse himself from presiding over this matter due to his prior involvement with the celebrity. Counsel argues that it would be impossible for Judge Y to preside impartially over this case given his past history with the decedent. The Executor’s counsel opposes recusal, arguing that there is no legal basis to disqualify Judge Y from presiding. In this instance, it may be appropriate to make a motion asking for a change in venue so that another judge can hear the case. If successful, this could result in a different judge being assigned to preside over proceedings related to distribution of assets from the estate. This could have a significant impact on how those assets are divided among beneficiaries.

What is a change of venue motion? Are there statutes or rules?

A change of venue is a motion to have a will contest case heard in a different county. It is very common in Texas as Harris County is the busiest probate court in the entire state. It is not uncommon for a will contest to be filed in Harris County, but the contesting party lives outside of Harris County. They are then required to file for a change of venue to the county where they live or where their business or family resides.

Related Posts