Probate, trust, guardianship and inheritance litigation
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Bill of Review Directed To Texas Probate Heirship Order Must Be Timely Filed By Party With Standing

In Bettwieser v. Jeffery, an August 3, 2020 opinion from the Fifth District Court of Appeals of Texas, Dallas, the court affirmed an order dismissing a bill of review filed regarding an order declaring heirship entered in a Texas probate estate that was closed in 2002.

Decedent Thomas Bettwieser died intestate in March 2002.  Decedent was survived by a spouse and two parents, but no children.  Decedent was also survived by his brother, Martin, the appellant in this case.

In July 2002, Decedent’s spouse, Sandra, applied for letters of independent administration and a declaration of heirship.  Sandra named herself and Decedent’s parents as Decedent’s heirs.  To see the rules of inheritance in an intestate estate, read Who Are Next of Kin In Texas?.

Two disinterested witnesses each executed, before a notary public, an affidavit of “Proof for Declaration of Heirship,” testifying that Decedent and Sandra were married from 1990 until Decedent’s death.

After hearing, the Texas county court entered an Order Declaring Heirship stating that Sandra and Decedent’s parents were Decedent’s only heirs.  Under sections 201.001 and 201.002 of the Texas Estates Code, Sandra received ½ of the estate and Decedent’s parents received the other ½.  Decedent’s probate estate was closed in November 2002.

Fifteen years later, in November 2017, Decedent’s brother, Martin, brought an action for bill of review in Bastrop County, Texas.  Appellant sought to vacate the 2002 Order Declaring Heirship.  The bill of review explained that it was filed outside of the four year statute of limitations because Sandra perpetrated a fraud on the county court and on Decedent’s parents by claiming to be Decedent’s wife when, in fact, Decedent was legally married to someone else (a woman named Tracie) at the time of his death.

Sandra (now remarried with the last name Jeffery) moved to dismiss the bill of review based on statute of limitations and standing.  The county court granted the motion to dismiss the bill of review.

What Is A Bill Of Review In Texas?

Under Texas law, “a bill of review is a direct attack on a judgment that is no longer subject to challenge by direct appeal or a motion for new trial.” Valdez v. Hollenbeck, 465 S.W.3d 217, 226 (Tex. 2015).

Only the court that rendered the original judgment may exercise jurisdiction over the bill of review, and that is the court in which it must be filed.

In order to succeed by bill of review, a petitioner has to prove that he had a meritorious claim or defense, and that he was prevented from asserting the claim or defense by the fraud, accident, or wrongful act of the respondent, or by official mistake.  The petitioner’s own fault or negligence cannot be the reason petitioner failed to present the claim.

Who Has Standing To File A Bill Of Review Of An Order Declaring Heirship?

A party has standing when he has a “justiciable interest” in the outcome of the suit, id., that is to say he is personally aggrieved, regardless of whether he is acting with legal authority. Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). To have standing to pursue a bill of review, a person generally either must have been a party to the prior judgment or have had a then-existing interest or right that was prejudiced by the prior judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010).

Here, it is undisputed that Decedent’s brother was not Decedent’s heir at law.  Decedent had no children.  At the time of Decedent’s death, therefore, Sandra and Decedent’s parents were Decedent’s only possible heirs under the Texas laws of intestate succession.

Because Decedent’s brother was not an heir or a party to the prior judgment, he did not have standing to pursue a bill of review of the Texas court order determining heirship.

What Is The Statute Of Limitations To File A Bill Of Review In Texas Probate Court?

At the time of the events underlying this lawsuit, section 31 of the Texas Probate Code provided that “no bill of review shall be filed after two years have elapsed from the date of [the probate court’s] decision, order or judgment.” See Tex. Estates Code § 55.251 (formerly Tex. Prob. Code § 31).  The applicable provision today, section 55.251 of the Texas Estates Code, states:

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.

The statute of limitations for appellant’s action for bill of review directed to the Texas probate order determining heirship thus expired in 2004, unless “(1) the limitations period was tolled and (2) the heirs filed their petition for bill of review within two years from the date the injury was discoverable or the estoppel effect of tolling ceased.”

Tolling Of The Statute Of Limitations For An Action For Bill of Review In Texas Probate Court

Two doctrines can toll the limitations period for an action for bill of review in Texas – the discovery rule and fraudulent concealment.

The discovery rule “defers the accrual of the cause of action until the injury was or could have been reasonably discovered.”

Fraudulent concealment tolls the limitations until the fraud is discovered or could have been discovered with reasonable diligence.  When a defendant has a duty to disclose but conceals the existence of a cause of action from the party to whom it belongs, the defendant cannot rely on the statute of limitations defense until the party learns of the right of action or should have reasonably discovered it.

Here, Decedent’s brother offered no evidence or argument that the two-year limitations period was tolled by either the discovery rule or fraudulent concealment.

Therefore, the Texas trial court’s order dismissing appellant’s bill of review was therefore affirmed.

This case is a reminder that not everyone who is bothered by a judgment has standing to challenge it, and, even if they did, the statute of limitations might bar any claim.  Waiting for 15 years to challenge a judgment of a Texas probate court is generally not going to result in a favorable outcome for the challenger.



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