pjc-family-2024-lib

W ILL C ONTESTS

PJC 230.7

PJC 230.7

Proponent in Default

QUESTION ______ Did PROPONENT use reasonable diligence in filing the document dated DATE ? DECEDENT died DATE and the document was filed DATE . A will may not be admitted to probate after the fourth anniversary of the decedent’s death unless the applicant proves that he used reasonable diligence from the date the decedent died until the will was filed. The standard of diligence required is that diligence to locate and file a will for probate that an ordinarily prudent person would have used under the same or similar circumstances. Answer “Yes” or “No.” Answer: _______________ COMMENT Source. A will may not be admitted to probate after the fourth anniversary of the decedent’s death unless the applicant proves that he was not in default in failing to present the will for probate on or before the fourth anniversary of the decedent’s death. Tex. Est. Code § 256.003(a). “Default” in this context means a failure due to the absence of reasonable diligence. Brown v. Byrd , 512 S.W.2d 753, 755 (Tex. App.— Tyler 1974, no writ). When to use. The date of the offer of the will for probate is not a fact issue. The date of the decedent’s death is generally not a disputed fact issue, either. Therefore, no PJC is provided on whether or not the application was filed within four years. The question above would be submitted only after a determination that the application was filed after the fourth anniversary of the decedent’s death. No imputation of default of predecessor or other beneficiary. Under prior law, a predecessor’s default would be imputed to a proponent and the will denied probate. See Faris v. Faris , 138 S.W.2d 830, 832 (Tex. App.—Dallas 1940, writ ref’d). The supreme court overruled the Faris court’s imputation rule in Ferreira v. Butler , 575 S.W.3d 331, 338 (Tex. 2019). Under current law, the default inquiry focuses solely on a proponent’s conduct. However, a proponent who is seeking probate of a will on behalf of another person cannot obtain probate of the will if that person was in default. In Ferreira , an executor of the husband’s estate offered the will of the predeceased wife for probate, which left

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