Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 2 Kaufman County,
Texas Trial Court Cause No. 17P-184-2
Justices Whitehill, Schenck, and Richter 
appeal involves a will contest and requires that we evaluate
two issues concerning the allocation of burdens to prove
standing and estoppel by acceptance of benefits. Finding
Appellant Tia MacNerland (Tia), the will contestant,
satisfied her burden of proof while Appellee, Lisa Jo Jones
(Lisa Jo) did not, we reverse and remand the trial
court's final judgment.
2017, Dempsey Johnson executed a will (the Will) in which he
devised multiple specific gifts to his three daughters, Tia,
Lisa Jo, and Carla. Specifically, Tia was bequeathed the
entirety of a mutual fund and a one-half share of a bank
account. The final provisions of the will devised the
residuary of the estate to his daughters in equal shares.
Dempsey also devised any other property not disposed of by
will provision to his heirs. Lisa Jo was named as independent
Dempsey's death, Lisa Jo filed an application to probate
the Will and requested letters of independent administration,
which were issued. In December 2017, Lisa Jo transferred the
proceeds of the mutual fund, approximately $146, 000, to Tia
and Tia accepted the transfer. Two months later, Tia filed a
will contest claiming Dempsey lacked testamentary capacity
when he executed the Will and/or was unduly influenced by
Lisa Jo. Tia did not file any evidence in support of her
petition contesting the Will. The case was then transferred
to county court at law where all documents in the probate
case, including the Will, became part of the case. In her
answer to the will contest, Lisa Jo asserted that Tia lacked
standing to contest the Will because she had accepted
benefits bequeathed to her under the Will. Months later, Lisa
Jo filed an inventory, appraisement, and list of claims
valuing Dempsey's estate at $1, 427, 209 (exclusive of
the previously distributed mutual fund proceeds) and
identifying property that was not disposed of in the Will.
Lisa Jo then filed a verified motion in limine challenging
Tia's standing and asked the trial court to dismiss the
will contest. After hearing arguments, the trial court
granted the motion and dismissed the case.
Contestants must prove their standing while proponents must
prove their affirmative defenses.
"interested persons" have standing to contest a
will and a contestant bears the burden of proving his or her
standing by demonstrating that he or she has a "legally
ascertained pecuniary interest, real or prospective, absolute
or contingent, which will be impaired or benefited, or in
some manner materially affected, by the probate of the
will." Tex. Est. Code § 55.001; Logan v.
Thomason, 202 S.W.2d 212, 215 (Tex. 1947). Devisees
and heirs-at-law are interested persons. Tex. Est. Code
by acceptance of benefits provides a will proponent one
mechanism for challenging a will contestant's standing.
Trevino v. Turcotte, 564 S.W.2d 682, 686 (Tex.
1978). The rule of estoppel by acceptance in will contests is
designed to estop a will contest by a person who previously
accepted a benefit devised under the will. Id.
("It is a fundamental rule that a person cannot take a
beneficial interest under a will and at the same time retain
or claim any interest . . . which would defeat or in any way
prevent the full effect and operation of every part of the
will."). If the proponent seeks to challenge the
contestant's standing by way of estoppel by acceptance,
he or she must assert it as an affirmative defense.
Tex.R.Civ.P. 94. Accordingly, the will proponent bears the
burden of proving the affirmative defense by demonstrating
that the challenge is inconsistent with the accepted benefit.
See Holcomb v. Holcomb, 803 S.W.2d 411, 414 (Tex.
App.-Dallas 1991, writ denied). To do so, this Court has held
that the proponent must demonstrate that the contestant
"received benefits to which she would not be entitled
under [any] will, or even under the laws of intestacy."
Id. In Holcomb, this Court held the
proponent had not met this burden because he "failed to
establish as a matter of law that [the contestant] accepted
benefits under the probated will over those which
she would have otherwise been entitled to." Id.
at 414 (emphasis added). Therefore, the contestant was not
estopped from filing a contest because she had not received
more benefits than she was entitled to under the
will or intestacy. Id.
As the proponent, Lisa Jo failed to carry her
contestant, Tia had the initial burden of proving her
standing as an interested person. See Logan, 202
S.W.2d at 215. Though Lisa Jo claims that Tia did not meet
this burden because she failed to introduce the Will into
evidence with her petition, we assume the trial court took
judicial notice of the Will and its contents, as well as the
inventory, which was in the trial court's files. See
Sierad v. Barnett, 164 S.W.3d 471, 481 (Tex. App.-Dallas
2005, no pet.) ("The [trial] court may be presumed to
have taken notice of its own files."). Because the face
of the Will established Tia's standing as a devisee and
an heir-at-law, Tia satisfied her threshold burden.
See Tex. Est. Code § 20.018.
answer to the will contest, Lisa Jo pled the affirmative
defense of estoppel, and was therefore required to
demonstrate Tia's acceptance of the proceeds of the
mutual fund was inconsistent with her challenge to the Will.
Holcomb, 803 S.W.2d at 413-14. Though Tia accepted
the bequest, the Will and inventory also demonstrated that
she was entitled to half of a bank account and additional
residual gifts devised by the Will, a fact conceded by Lisa
Jo. Additionally, Tia's acceptance was also consistent
with the laws of intestacy because, as an heir, she would
have been entitled to a one-third share of the $1, 427, 209
estate. Rather than satisfy her burden, Lisa Jo relied on a
case that disagreed with our holding in Holcomb, and
argued Tia was burdened with disproving estoppel. Declining
an unacceptable invitation for one panel of this court to
disregard the holding of ...