Texas Bar Journal • December 2024

Estate Planning and Probate Law

Written by Gerry W. Beyer

Jurisdiction Exists Even If Necessary Party Is Not Joined
This complex case involved an alleged breach of duty by a trustee selling trust property (stock). The lower court issued a declaratory judgment voiding the transfer. Without reaching the merits, the El Paso Court of Appeals in In the Matter of Trust A and Trust C,¹ explained that it was setting aside the lower court’s judgment because the transferees of the stock were not made parties to the action. The Supreme Court of Texas reversed in In re Matter of Trust A and Trust C.² The court determined that the probate court indeed had jurisdiction. Merely because the transferees were not parties did not deprive the probate court of authority to resolve the breach of trust dispute although the relief the court could grant would be limited by the failure to join the transferees.

Testimony in Lost Will Case Need Not Be Sworn
The sole beneficiary of the testatrix’s will, the Humane Society of the United States, made an uncontested application to probate a copy of the will. The trial court denied probate because a diligent search for the original failed to discover the original and no sufficient cause for the nonproduction existed to overcome the presumption of revocation that exists when the original cannot be located.³ The beneficiary appealed. The appellate court affirmed on the ground that evidence from the testatrix’s attorney could not be considered because she was not sworn as a witness when she gave on-the-record testimony.

The Supreme Court of Texas reversed in In re Estate of Brown.⁴ The court held that neither the Estates Code nor the Rules of Evidence required the attorney’s testimony be sworn. The court also found that the evidence was sufficient as a matter of law to establish the cause of nonproduction of the original, that is, the original was not found after a search of the testator’s home, safe deposit box, and the drafting attorney’s office. The court then remanded the case to the court of appeals to decide whether the evidence was sufficient to overcome the presumption of revocation and to determine the burden of proof needed when the probate is uncontested.

No Jury Trial in Trust Modification Action
The Supreme Court of Texas in Matter of Troy S. Poe Tr.⁵ held that Property Code § 112.054 did not create a statutory right to a jury trial for a trust modification proceeding. The court remanded to the 8th Court of Appeals in El Paso to determine whether the Texas Constitution provides a jury trial guarantee. In Matter of Troy S. Poe Tr.,⁶ the court held that neither the Bill of Rights nor the Judiciary Article provides a jury trial right in this situation.

No Estate Administration Possible If Will Probated as Muniment of Title Prior to September 1, 2019
In Matter of Estate of Shriver,⁷ the 4th Court of Appeals in San Antonio held that the trial court lacked jurisdiction to open an administration after admitting a will to probate as a muniment of title because the enabling statute did not give retroactive effect to the amendment authorizing an opening.

GERRY W. BEYER is the Governor Preston E. Smith Regents Professor of Law at the Texas Tech University School of Law, where he teaches probate courses including wills and trusts, estate planning, and Texas estate administration. He is the editor in chief of the REPTL Reporter, the quarterly publication of the State Bar of Texas Real Estate, Probate, and Trust Law Section, which honored him in 2022 with the Distinguished Probate Attorney Lifetime Achievement Award.