Dear Mr. Premack: In 1992 my Great Uncle Joe died. He was a judge and knew the law obviously quite well. He had a Will a few inches thick; however, at his passing in 1992, at the reading of the Will a family friend produced a Will dated April 1991. This was a more recent Will and was nothing more than a piece of paper in Joe’s writing slanted (we suspect he had been drinking) leaving everything to this family friend. He had millions and left less than a few hundred thousand to his seven brothers and sisters and the rest to this family friend. Obviously, someone should have objected but his siblings were stubborn and refused to question the Will. Now, one sister who could have contested the Will has been declared incompetent and the power of attorney has been passed over to my Mother who would like to pursue this. There are many suspicious things that have happened since. One family friend claims the family friend who inherited everything from my Uncle Joe showed him another Will that left everything to him and nothing to my his family (not even the few hundred thousand). This family friend apparently said, “It’s a good thing I didn’t use this one.” Would we need to discover new evidence and if so what kind? Is there a statute of limitations on a Will this old and what possible course of action could we take? – KM
Probate Code section 93 sets out the limitations. It says: “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…” The general limit set by Texas law is that a contest must be filed within 2 years of when the Will was admitted to probate. But there are two exceptions:
The first exception deals with forgery or fraud. The law allows any interested person to institute suit in the proper court to cancel a Will for forgery or other fraud, so long as the suit is filed within two years after the discovery of the forgery or fraud. Does this help you? Unlikely, since the family was informed of the “suspicious” Will in 1992, knew about its possible irregularities, and decided not to act.
The second exception deals with the legal capacity of the Will’s beneficiaries. If a beneficiary is incapacitated when the Will is admitted to probate, the window to contest the Will remains open for two years from the date on which they regain capacity. The best example is an underage beneficiary when Uncle Joe died. As a child, that person lacked legal capacity. Upon turning 18, that person gained legal capacity, and had two years (until reaching age 20) to file a contest of the Will. In Uncle Joe’s case, anyone older than two when he died is already barred by the statute of limitations.
His sister who is now incapacitated is barred by the two year statute of limitations from bringing a contest, since she had full capacity for the first two years after the Will was admitted to probate. Thus, your mother as agent is also barred by the statute of limitations. (Besides, you say she has been “declared incompetent” which can only be done by a Judge. If a Judge did so, then the power of attorney’s agent would very likely be replaced by a court appointed guardian. That is another strike against your mother’s authority to act.)
Finding new evidence after 20 years is unlikely. Rumors and innuendo are not helpful, and are not legal proof of wrongdoing. Old suspicions, like the insinuation that Uncle Joe had been drinking when he handwrote the Will is not hard evidence. Those who knew him best (his siblings) decided at that time to accept the Will as valid. The statute of limitations is intended to put an end to legal uncertainty, letting the court-determined heirs proceed without threat of legal action into the distant future. Unless some extraordinary new evidence of previously unknown fraud is uncovered, this case is closed.
Paul Premack is a Certified Elder Law Attorney practicing estate planning and probate law in San Antonio.
Original Publication: San Antonio Express News, September 16, 2011