This dispute stems from a disagreement within a blended family: Norman married Linda. They subsequently divorced. Norman then married Patricia, who had two children from a prior marriage (the “Butlers”). Patricia then died testate in 2006; Norman never submitted her will to probate. Norman later died testate in 2015.

Linda, as Executrix of Norman’s estate, filed Patricia’s will for probate outside of the four-year statutory limitation.[1] Patricia’s will devised her estate to Norman, thus disinheriting the Butlers who would have received her estate under Texas intestacy statutes. Litigation ensued.

The trial court considered the following question: did the four-year statute of limitations bar Linda from offering Patricia’s will to probate nine years after Patricia’s death? Answering in the affirmative following prior case law, the trial court rejected Linda’s argument that she was the applicant contemplated by the statute, and that Norman’s inaction should not be imputed to her. The appellate court confirmed.

The Texas Supreme Court reversed and remanded for further proceedings, using the case to overturn prior law. In its analysis, the Texas Supreme Court first examined Faris v. Faris,[2] which held that a devisee’s default under the statute is imputed to her devisee. Additional cases were also discussed.

In rejecting Faris, the Texas Supreme Court focused on the plain meaning of the statute: “the applicant for the probate of the will was not in default.” Refusing to change the meaning of the statute by adding additional words, the court held that Linda in her individual capacity as an interested party (devisee) could submit Patricia’s will to probate because only her conduct, and not Norman’s, was relevant to determining whether she was not in default. The Court, however, refused to allow Linda to admit the will in her capacity as Executrix of Norman’s estate, imputing Norman’s inaction to his estate.

The effect of this ruling on title examiners is severe as it introduces uncertainty to a previously settled question of law.

Title examiners routinely encounter unprobated wills that are generally attached to Affidavits of Heirship. Previously, an examiner would determine title to real property based on the four-year statute of limitations combined with the contents of an Affidavit of Heirship. However, under Ferreira as it relates to this specific fact pattern, reliance on the four-year statute of limitations is no longer available. As such, title examiners should be aware of the change in the law and adapt accordingly.


[1] Estates Code §256.003(a): Except as provided by Section 501.001 with respect to a foreign will, a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death

[2] Faris v. Faris, 138 S.W.2d 830 (Tex.Civ.App.-Dallas 1940, writ ref’d).