Court of Appeals of Texas, Third District, Austin
PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-1-PB-16-001347,
HONORABLE GLADYS BURWELL, JUDGE PRESIDING
Justices Puryear, Goodwin, and Shannon. [*]
an appeal from the judgment of the probate court of Travis
County denying the application for probate of the will of
Olivia Ramirez as a muniment of title. The application was
filed more than four years after the testator's death.
Appellant is Ulises Ramirez, husband of Olivia. Appellees are
Santiago and Daniel Galvan, Olivia's sons by a previous
marriage. This Court will reverse the judgment.
application to probate the will, Ulises asserted that he was
not at fault for failing to offer the will to probate within
four years of his wife's death. His stepsons contested
the application. After hearing, the court rendered judgment
denying the application.
was originally from Veracruz. His first language is not
English. Although he had lived here for some years, his
comprehension of English was such that he testified through
an interpreter at the probate hearing. Olivia and Ulises
married in 1997. After their marriage, they bought a house
located on Webberville Road in Austin. She was employed by
the school district and had a retirement account with the
Teacher Retirement System, worth between $38, 000 and $48,
000 at her death.
fifty-three, Olivia suffered from advanced pancreatic cancer.
Knowing that she did not have long to live, she began putting
her affairs in order. Without Ulises's knowledge, she
obtained counsel who drafted her will. By the will, Olivia
appointed Ulises executor. She bequeathed her Ford truck to
her son, Santiago, and directed Ulises to distribute certain
personal items pursuant to a document separate from the will.
All the rest of her property, including her interest in the
house, she left to Ulises. About the same time, with
Ulises's consent, Olivia changed the beneficiary
designation on her retirement account from Ulises to her
died on June 8, 2010, less than a month after the will had
been executed. She had been married to Ulises for thirteen
before Olivia died, the witnesses to the will delivered it to
Ulises. After receiving the will, and even before she died,
Ulises set about trying to carry out Olivia's wishes as
expressed in her will. He paid off her outstanding debts with
money from his own pocket. After her death, when her bills
came in, he paid them in the same way. In some manner, he
transferred title to the truck to Santiago. He distributed
Olivia's personal items as directed in the
non-testamentary document. Because Olivia left everything
else to him, he did not think it was necessary to do anything
continued living in the house on Webberville Road and paid
off the mortgage with his separate funds. During this time,
he maintained the house and paid the ad valorem taxes on the
property. After living there for six more years, he decided
to sell the house in the Spring of 2016. It was only then
that he became aware of the necessity to probate Olivia's
will. When the contract of sale was delivered to the title
company, one of its employees told Ulises of the title
problem and advised him to consult an attorney. This he did,
and the application to probate the will as a muniment of
title was promptly filed.
to section 256.003(a) of the Texas Estates Code, a will must
be submitted for probate within four years of the
testator's death. After expiration of the four-year
period, a will may be probated as a muniment of title so long
as the proponent is not in "default." As used in
section 256.003(a), "default" means failure to
probate a will because of the absence of reasonable diligence
by the party offering the instrument. In re Estate of
Allen, 407 S.W.3d 335, 339 (Tex. App.-Eastland 2013, no
pet.). The burden is on the party applying for the probate to
demonstrate that he was not in default. In re Estate of
Campbell, 343 S.W.3d 899, 902 (Tex. App.-Amarillo 2011,
no pet.). Whether the party applying for probate is in
default is usually a question of fact. Id. at 903.
Mere ignorance of the law does not excuse failure to file
probate proceedings within the four-year period. See
Brown v. Byrd, 512 S.W.2d 753, 757 (Tex. Civ. App.-Tyler
1974, no writ).
case law is quite liberal in permitting a will to be offered
as a muniment of title after the four-year limitation period
has expired. In re Estate of Allen, 407 S.W.3d at
339; Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex.
App.-Houston [1st Dist.] 1994, no writ). Referring to the
statutory predecessor of section 256.003(a), the Waco Court
of Civil Appeals, more than ninety years ago, observed,
"The tendency of our courts has been from its [sic]
earliest decisions to permit wills to be filed after the
four-year period where there is any evidence of probative
force which would excuse the failure to offer the will
sooner." Armstrong v. Carter, 291 S.W. 626, 627
(Tex. Civ. App.-Waco 1927, no writ). Indeed, the
proponent's belief that probate was unnecessary has been
found a sufficient excuse. See Matter of Estate of
Hammack, No. 12-15-00246-CV, 2016 WL 1446083 (Tex.
App.-Tyler Apr. 13, 2016, no pet.) (mem. op.);
Chovanec, 881 S.W.2d at 137; Kamoos v.
Woodward, 570 S.W.2d 6, 8 (Tex. Civ. App.-San Antonio
1978, writ ref'd n.r.e.).
Chovanec, the applicant was not aware that it was
necessary to probate his wife's will. See 881
S.W.2d at 137. Also he did not believe probate was necessary
because he inherited everything from his wife and he believed
that, in any event, the tract of land involved was his
separate property. See id. The court concluded that
this evidence showed more than simply the applicant's
ignorance of the law and was, instead, evidence of excuse.
instant case, the probate court's judgment simply
provided that the application for probate be
"denied." By denying the application, the court
must have concluded that ...