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Evans v. Allen

William Vinson executed a self-proving will on March 1, 2006. On Dec. 22, 2006, while under guardianship, Vinson executed a second self-proving will, which revoked the first will. Appellant Ollie L. Evans filed a will contest seeking to set aside the order admitting the Dec. 22, 2006 will to probate. The trial court directed a verdict in favor of Betty J. Allen, the independent executor of Vinson's estate, on the ground that the statute of limitations barred Evans' will contest. Because Evans, a person interested in Vinson's estate, was charged with constructive notice of the second will, the statute of limitations began to run on the date the court admitted the second will to probate. The trial court correctly granted a directed verdict in favor of Allen on the basis of limitations. Because a testator under a guardianship does not necessarily lack testamentary capacity to execute a will, Allen, by seeking a guardianship for Vinson and by seeking to probate a will executed after the initiation of the guardianship, did not assert inconsistent positions. Therefore, Allen is not judicially estopped from seeking to probate the second will. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-10-00766-CV, 10-27-2011.

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OPINION

Appellant Ollie L. Evans filed a will contest seeking to set aside the order admitting the December 22, 2006 will of decedent William Vincent Vinson to probate. The trial court directed a verdict in favor of Betty J. Allen, the independent executor of Vinson’s estate, on the ground that the statute of limitations barred Evans’s will contest. In two issues, Evans contends that (1) the trial court erred in granting the directed verdict on the basis of limitations, and (2) Allen was judicially estopped from seeking to probate the December 22, 2006 will because Allen had previously been appointed Vinson’s permanent guardian and the probate court did not restore his capacity before his death.

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