In Ferreira v. Butler, a husband and wife divorced, and the husband married a second wife. No. 17-0901, 2019 Tex. LEXIS 375 (Tex. April 12, 2019). The second wife died, and the husband never probated her will, which left everything to him. Nine years later, the husband died and his will left most of his estate to his first wife. The first wife was the executor of his estate, and she then attempted to probate the second wife’s will. The second wife’s intestate heirs contested the probate of that will on the ground that it was barred by the four-year limitations period in Section 256.003(a) of the Texas Estates Code. The trial court granted the heirs’ motion for summary judgment and dismissed the application to probate the second wife’s will. The court of appeals affirmed, and the first wife appealed.

The Texas Supreme Court reversed for the first wife. Section 256.003(a) of the Texas Estates Code states: “Except as provided by Section 501.001 with respect to a foreign will, a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.” Id. (quoting Tex. Est. Code § 256.003(a)). The Court held that the husband’s estate qualified as an interested person because he was the second wife’s heir, devisee, and spouse. The Court agreed with the lower courts that the first wife was barred from probating the second wife’s will in her capacity as executor because the first wife was standing in the shoes of the husband’s estate, the default inquiry must focus on the husband and there was no proof that the husband was not in default in failing to probate the second wife’s will within four years of her death.

The Court then held that the first wife also had standing to probate the second wife’s will in her individual capacity as she was the beneficiary of the husband’s estate, who was the beneficiary of the second wife’s estate. The Court then reversed prior precedent and held that “under Section 256.003(a), when an applicant seeks late-probate of a will in her individual capacity, only the applicant’s conduct is relevant to determining whether she ‘was not in default.’” Id. The Court held that if the first wife had applied to probate the will in her individual capacity the husband’s default would be irrelevant under Section 256.003(a). As the first wife did not assert individual standing, the Court could not render for her. However, the Court vacated the judgments of the lower courts in the interest of justice and remanded the case to the trial court to give the first wife an opportunity to amend her pleadings to pursue probate of the will in her individual capacity.

Interesting note: It is probably safe to say that the second wife would roll over in her grave if she knew that the first wife would receive the second wife’s assets over the second wife’s own children. This case brings up a very frequent issue: second marriages where the husband and wife have children from previous relationships. The spouse loves and wants to provide for his or her surviving spouse. But the spouse probably wants to leave his or her estate to his or her own children after the surviving spouse dies. If the spouse leaves everything to his or her surviving spouse outright, then the deceased spouse will have no say in where the assets go after the surviving spouse’s death. That is the exact case set forth above. This issue can be remedied by leaving the deceased spouse’s assets in a trust with the surviving spouse as the primary beneficiary and the deceased spouse’s children as the remainder beneficiaries. A word of warning is that the deceased spouse should make a third party (bank) the sole trustee or have the surviving spouse be a co-trustee with the remainder beneficiaries also being co-trustees. It is all too common for the surviving spouse, who is a sole trustee of the trust, to treat the trust assets as his or her own assets and not give consideration to his or her fiduciary duties to the remainder beneficiaries. Also, the spouse could leave property to the surviving spouse in a life estate with the remainder interest going to the deceased spouse’s children. There are other potential methods to solve this thorny issue. A person should seek legal advice from an qualified estate planning attorney to ensure that his or her assets do not end up with an unintended person or persons.

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Photo of David Fowler Johnson David Fowler Johnson

dfjohnson@winstead.com
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law