By: Troy Hornsby, Miller, James, Miller & Hornsby, L.L.P., Texarkana

INTRODUCTION

In probate proceedings, parties have additional appellate avenues available which are not available in other proceedings. In a probate proceeding, a party can use appellate mechanisms available in other cases such as an appeal to a court of appeals from a final judgment, an equitable bill of review, or a restricted appeal. Additionally, a party in a probate proceeding can utilize some additional appellate remedies which are particular to probate: (1) the statutory bill of review; (2) the post-probate will contest; and (3) the probate exception to the one-final-judgment rule.

I. Statutory Bill of Review

Probate parties can utilize the statutory bill of review. Most of us are aware of the equitable bill of review cause of action. See Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950). This collateral attack on a judgment is often used to challenge default judgments up to four years after they are rendered. However, fewer are aware of the statutory bill of review. This remedy is established in the Texas Probate Code at section 314 which provides as follows:

Bill of Review

Any person interested may, by a bill of review filed in
the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment.

Revision and Correction of Order or Judgment in Probate Proceeding
(a) An interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.
(b) A bill of review to revise and correct an order or judgment may not be filed more than two years after the date of the order or judgment, as applicable.
TEX. EST. CODE § 55.251. Similarly Texas Estate Code section 657 relevant to guardianships will provide:
Revision and Correction of Order or Judgment in Guardianship Proceeding
(a) An interested person, including a ward, may, by a bill of review filed in the court in which the guardianship proceeding was held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment.
(b) Except as provided by Subsection (c), a bill of review to revise and correct an order or judgment may not be filed more than two years after the date of the order or judgment.
(c) A bill of review to revise and correct an order or judgment filed by a person whose disability has been removed must be filed not later than the second anniversary of the date the person’s disability was removed.
TEX. EST. CODE§ 1056.101.

Tex. PROB. CODE § 31. “The purpose of a section 31 [statutory] bill of review is to revise and correct errors, not merely to set aside decisions, orders, or judgments rendered by the probate court.” Nadolney v. Taub, 116 S.W.3d 273, 278
(Tex. App.-Houston [14th Dist.] 2003, pet. denied) (citing Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex. Civ. App.- Houston [1st Dist.] 1980, no writ)).

This statutory bill of review does not have the same requirements as an equitable bill of review. See Hamilton v. Jones, 521 S.W.2d 350, 353 (Tex. Civ. App.-Houston [1st Dist.] 1975, writ ref’d n.r.e); see also Alexander, 226 S.W.2d at 996, 998 (requirements for equitable bill of review). Thus, although equitable and statutory bills of review are often confused, the statutory bill of review is a completely independent cause of action. See, e.g., In re Estate of Rogers, 322 S.W.3d 361, 365 n.2 (Tex. App.-El Paso 2010, no pet.). However, both an equitable bill of review and a statutory bill of review appear to be available options in a probate setting. See, e.g., Power v. Chapman, 994 S.W.2d 331, 334-35 (Tex. App. -Texarkana 1999, no pet.).

Statutory bills of review can used to challenge “any decision, order or judgment” in a “[p]robate proceeding.”TEX. PROB. CODE §31; Podgoursky v. Frost,394 S.W.2d 185, 190 (Tex. Civ. App.-San Antonio 1965, writ ref’d n.r.e.) (limited to probate). For example a claim against an administrator based upon a rejected claim is not a “probate proceeding.” Podgoursky,394 S.W.2d at 190. The statutory bill of review should be filed in the court rendering the decision under attack. See, e.g., Jackson, 610 S.W.2d 519. However, a statutory bill of review is a contested matter properly transferable from a county court pursuant to the transfer provisions of Probate Code section 5. See id. at 522; but see State v. Fernandez, 159 S.W.3d 678, 684-85 (Tex. App.- Corpus Christi 2004, no pet.) (jurisdictional issue prevented review of this issue).

A statutory bill of review requires the plaintiff to allege and prove three elements: (1) an interested person; (2) filed a timely bill of review; and (3) there was substantial error. McDonaldv. Carroll,783 S.W.2d 286, 284 (Tex. App.-Dallas 1989, writ denied). Additionally, (4) in order not to limit the statutory bill of review, it should include all parties to the original judgment. Pure Oil Co. v. Reece, 124 Tex. 476, 481, 78 S.W.2d 932, 934 (1935).

A statutory bill of review must be initiated by an interested person. TEX. PROB. CODE § 31. The phrase, “any person interested,” has no technical meaning but should be construed as having reference to anyone who suffers from the aggressions of another, or who is injured in a legal sense. Persky v. Greever, 202S.W.2d303,306(Tex.Civ.App.-Fort Worth 1947, writ ref’d n.r.e.). The Fort Worth Court of Appeals concluded that “a party is aggrieved by a final decision of the appeals panel if the injury or loss resulting from the final decision is actual and immediate; a possible future injury or loss as a consequence of the panel decision is not sufficient to show an aggrievement.” Insurance Co. v. Orosco, 170 S.W.3d 129, 133 (Tex. App.-San Antonio 2005, no pet.)

A statutory bill of review must be initiated within two years “from the date of such decision, order, or judgment.” TEX. PROB. CODE §31. This limitations period is subject to tolling. See, e.g., Ladehoff v. Ladehoff 436 S.W.2d 334, 337 (Tex. 1968) (minority of petitioner). Further, a statutory bill of review can be brought even after the estate has been distributed. McDonald, 783 S.W.2d at 287. However, the ordinary rules of diligence in pursuing other remedies relevant to an equitable bill of review do not apply. See Buck v. Est. of Buck, 291 S.W.3d 46, 53 (Tex. App.-Corpus Christi 2009, no pet.).

For a statutory bill of review to succeed, substantial error must be present,s which is properly alleged.6 Such substantial error can exist on the face of the record. Buck, 291 S.W.3d at 52. Alternatively, the appellant can prove the trial court committed substantial error by a preponderance of the evidence. McDonald, 783 S.W.2d at 288; see also Hoover v. Sims, 792 S.W.2d 171, 173 (Tex. App.-Houston [1st Dist.] 1990, writ denied). There are two types of statutory bill-of- review cases which are distinguishable based upon the substantial error alleged. Nadolney, 116 S.W.3d at 280-281. The petitioner can either allege the trial court committed substantial error: (1) when it acted in direct derogation of a specific, nondiscretionary, provision of the Probate Code; or (2) in performing a discretionary act. Buck, 291 S.W.3d at 53 (citing Nadolney, 116 S.W.3d at 280; Walker v. Sharpe, 807 S.W.2d 448, 450-51 (Tex. App.-Corpus Christi 1991, writ denied) (involving an order confirming the sale of property when the property was sold before the order issued authorizing the sale, contrary to Probate Code sections 331, 341 46, 353, and 355); McDonald, 783 S.W.2d at 287(involving the disproportionate distribution of the estate of intestate decedent, contrary to Probate Code section 45); Nadolney, 116 S.W.3d at 280 (involving the trial court’s determination that the appointment of an appraiser was necessary, an act within the trial court’s discretion)).

A statutory bill of review should include all parties to the original judgment. Pure Oil Co., 78 S.W.2d at 934. As such, it is a direct attack on the judgment challenged. Id. In a direct attack, the complaining party can advance any substantial error. However, if the action does not include all parties to the judgment challenged, it is a collateral attack. Pure Oil Co., 78 S.W.2d at 934. In a collateral attack, the complaining party is limited to arguing that the court rendering judgment “had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court.” Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985). In a collateral attack, extrinsic evidence may not be used to establish a lack of jurisdiction. See Crawford v. McDonald,88 Tex. 626, 631, 33 S.W. 325, 332 (1895).

Finally, a party can appeal the trial court’s denial of a statutory bill of review. See, e.g., In re Estate of Jones, 286 S.W.3d 98 (Tex. App.-Dallas 2009, no pet.). However, the order denying the statutory bill of review must be a final appealable order. In re Est. of Davidson, 153 S.W.3d 301 (Tex. App.-Beaumont 2004, pet. denied); see also State v. Fernandez,159 S.W.3d 678 (Tex. App.-Corpus Christi 2004, no pet.). Thus, if the statutory bill of review (or post-probate will contest) is filed in the pending estate action which is not final, the statutory bill of review is also not final and appealable. Id. However, even if it is not a final appealable order, it may still qualify for appeal under the probate exception to the one-final-judgment rule. See Davidson, 153 S.W.3d at 304.

II. Post-Probate Will Contest

After a will is admitted to probate, a contesting party can challenge the will in a post-probate will contest. Probate Code section 93 provides a very similar mechanism that has been described as a bill of review relating to the probate of wills. STANLEY M. JOHANSON, JOHANSON’S TEXAS PROBATE CODE ANNOTATED 41 (West Group 2001).

Probate Code section 93 provides:

Period for Contesting Probate

After a will has been admitted to probate, any
interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that incapacitated persons shall have two years after the removal of their disabilities within which to institute such contest.

TEX. PROB. CODE § 93. This provision appears to be the same as a statutory bill of review in the context of a post- probate will contest, other than section 93’s provision regarding forgery or fraud and incapacitated persons. See Davidson, 153 S.W.3d at 303. Further, authorities have argued the two provisions, in some instances, may provide the same remedy. Ladehoff 436 S.W.2d at 336-67 (Tex. 1968) (citing William B. Roberts, Procedural Content of Will Contests, 14 BAYLOR L. REV. 316, 327 (1962)). However, the Supreme Court has indicated that they are distinct methods of attacking the admission of a will to probate. See id. at 337; see also Schoenhals v. Schoenhals, 366 S.W.2d 594, 597 (Tex. Civ. App.-Amarillo 1963, ref’d n.r.e).

A post-probate will contest can presumably be filed as an “independent suit” or as “a new proceeding.” See Gumm V. Chalmers, 127 S.W.2d 942, 944 (Tex. Civ. App.-Galveston 1939) modified, 137 Tex. 467, 154 S.W.2d 640 (considering prior law). More specifically, the post-probate will contest can be filed as a new independent suit in the District Court. See Trevino v. Turcotte, 564 S.W.2d 682, 684 (Tex. 1978). Alternatively, it could be filed as a new suit in the county court. See White v. White, 149 S.W.2d 1031, 1032 (Tex. App. -Waco 1941, writ ref ‘d).

The burden of proof in a post-probate will contest is with the contestant. Cravens v. Chick, 524 S.W.2d 425, 428 (Tex. Civ. App.-Fort Worth 1975, writ ref’d n.r.e.). A trial in a post-probate will contest is de novo. Id. A post-probate will contest requires the plaintiff to allege and prove: (1) the plaintiff is an interested party; (2) the will was admitted to probate; (3) the post-probate will contest is brought within two years of the order [or within two years of discovery of forgery or fraud, or within two years of removal of disability of incapacitated person]; and (4) the underlying will is not valid. See TEX. PROB. CODE §93.

An “interested person” is someone who is either absolutely or contingently entitled to a share in the estate or the proceeds thereof. Baptist Found. of Tex. v. Buchanan, 291 S.W.2d 464, 468 (Tex. Civ. App.-[City] 1956, writ ref’d n.r.e.). An “interested person” has also been defined as one who has legally ascertained pecuniary interests, real or prospective, absolute or contingent, which will be impaired, benefited, or in some manner materially affected by probate of a will. Abbot v.Foy, 662 S.W.2d 629, 631 (Tex. App.-Houston [14th Dist.] 1983, writ ref’d n.r.e.).

The post-probate bill contest explicitly requires the will have already been admitted to probate. See TEX. PROB. CODE § 93. Accordingly, where a will has never been
probated, there is no basis for a post-probate will contest. See A&M Coll. of Tex. v. Guinn, 280 S.W.2d 373, 377 (Tex. Civ. App. -Austin 1955, writ ref’d n.r.e.)(prior statute).

The plaintiff must plead and establish that the post-probate will contest is brought within two years of the order, within two years of discovery of forgery or fraud, or within two years of removal of disability of incapacitated person. TEX. PROB. CODE §93. However, this limitations period is subject to tolling. See, e.g., Walker v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.-Corpus Christie 1978, writ ref’d n.r.e) (tolled during appeal). Additionally, the contestant must exercise diligence to see that notice is given or process issued and served. Kotz v. Kotz, 613 S.W.2d 760, 762 (Tex. Civ.
App.-Beaumont 1981, no writ).

The plaintiff must plead and establish that the underlying will is not valid. See TEX. PROB. CODE §93. Challenges to other actions of the probate court are not actionable under this provision. See, e.g. In re Est. of Jones, 286 S.W.3d 98, 100 (Tex. App.-Dallas 2009, no pet.) (muniment-of-title order entered when estate was subject to debts). The burden is on the contestant to prove grounds for the contest. See In re Est. of Graham, 69 S.W.3d 598, 605 (Tex. App.-Corpus Christi 2001, no pet.) (testamentary capacity); Evans v. May, 923 S.W.2d 712, 714-15 (Tex. App.-Houston [1st Dist.] 1996, writ denied) (undue influence). Offering a later will which revoked the prior will is not a direct attack on the underlying will and not a post-probate will contest. See In re Est. of Morris, 577 S.W.2d 748, 752 (Tex. Civ. App.- Amarillo 1979, writ ref’d n.r.e.). However, offering a prior will is a direct attack on later will which has been admitted to probate and qualifies as a post-probate will contest. See Klein v. Dimrock, 705 S.W.2d 408, 410 (Tex. App.-Fort Worth 1986, writ ref’d n.r.e.).

Finally, a party can appeal the trial court’s denial of a post- probate will contest. See, e.g., Turcotte, 564 S.W.2d at 684 (Tex. 1978). However, the order denying the statutory bill of review must be a final appealable order. Davidson, 153 S.W.3d
304. Thus, if the statutory bill of review (or will bill of review) is filed in the pending estate action that is not final, the statutory bill of review is also not final and appealable. Id. However, even if it is not a final appealable order, it may qualify for appeal under the probate exception to the one- final-judgment rule. See Davidson, 153 S.W.3d 304.

III. Probate Exception to the One-Final-Judgment Rule

In an exception to the one-final-judgment rule, Texas law has long recognized that probate proceedings may involve multiple judgments “on certain discreet issues,” each of which may be “final for purposes of appeal.” Id. (citing DeAyala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). In Crowson v. Wakeham, the Texas Supreme Court concluded that, in a probate setting, an otherwise interlocutory order is only appealable if: (1)there is an express statute (such as the one for the complete heirship judgment) declaring the phase of the probate proceedings to be final and appealable; (2) the order is properly severed making it final; or (3) the order adjudicates a “substantial right” and the order disposes of all issues in the phase of the proceeding for which it was brought-however, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is not appealable. Mackie, 193 S.W.3d at 578 (citing Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). Another article addressed the probate exception to the one final judgment rule in detail. See Troy Hornsby, The ProbateException to the One FinalJudgmentRule, 20 APP. ADVOC. 169 (Summer 2008).

CONCLUSION

An appellate attorney can utilize the appellate avenues of: (1) appeal from a final judgment; (2) equitable bill of review; and (3) restricted appeal to challenge probate rulings. However, the appellate attorney should also carefully consider the use of: (4) statutory bills of review; (5) post-probate will contests; and (6) the probate exception to the one-final- judgment rule; which are all appellate remedies unique to the probate realm. Only after carefully considering all available options can an appellate attorney decide which avenue is best- suited to the particular situation and determine where and how to pursue that remedy.

1 See TEX. PROB. CODE §5(g).
2 See, e.g., Powver v. Chapman, 994 S.W.2d 331, 333-34 (Tex. App.- Texarkana 1999, no pet.) (both bills of review analyzed).
See, e.g., In re Estate of Wilson, 252 S.W.3d 708, 711 (Tex. App.- Texarkana 2008, no pet.).
4 On January 1, 2014, this provision will be replaced with two similar provisions. Texas Estate Code section 55.251 will provide:
5 Buck P.Est.of Buck, 291 S.W.3d 46, 53 (Tex. App.-Corpus Christi 2009, no pet.).
6 See, e.g., In re Est. of Jones, 286 S.W.3d 98, 101 (Tex. App.-Dallas 2009, no pet).