The Fort Worth Court of Appeals decision in In Re Meeker involves two important issues for probate litigators: entitlement to pre-suit discovery and estoppel based on acceptance of benefits. Both issues arise fairly regularly in will contests.
Texas Rule of Civil Procedure 202 provides a limited method to obtain discovery of facts before actually filing a suit. It is a useful tool when a litigant suspects they have a valid claim, but wish to investigate further before actually filing suit. There are some exacting requirements of the rule and the discovery tools are more limited than would be allowed in an actual lawsuit. But it can be a useful mechanism at times, particularly when a potential will contestant is unable to obtain much information through informal investigation.
In Meeker, a son of the decedent filed a Rule 202 petition for pre-suit discovery in aid of a potential will contest. He sought to investigate whether his father had sufficient capacity to execute the will at issue. The Tarrant County Probate Court No. 2 granted the request.
The executor challenged that ruling through a mandamus appeal. Among other arguments, the executor contended that the son had already accepted benefits under the will and therefore had no standing to contest the will. Without standing to contest the will, a pre-suit investigation would be pointless.
There is at least one Texas appellate decision holding that a person is estopped (barred) from a contesting a will if they have accepted benefits under that same will. The theory is designed to prevent one from embracing a beneficial interest devised to him under a will, and then later asserting a challenge of the will inconsistent with the acceptance of benefits.
However, there are other decisions holding that estoppel does not bar a beneficiary from contesting a will if they stand to gain even more from a successful contest and they were going to obtain the already received benefits anyway. The son made that very argument, that the filing of a will contest does not mean that he was taking a position inconsistent with the benefits he had already received. He noted that if he succeeded in the will contest, he would keep whatever he already received, plus an additional portion of his father’s estate.
The majority of the court of appeals agreed with the son. It found that the exception to the estoppel rule applied, as there was no inherent inconsistency in obtaining benefits from the estate and then contesting the will to obtain a larger share.
A dissenting opinion disagreed and argued that the son could not almost simultaneously accept money via a will provision, then turn around and seek to investigate whether the will was invalid. This reasoning is in line with a Texarkana Court of Appeals decision from 1996. Perhaps the Texas Supreme Court will reexamine the estoppel issue in the next few years.