Generally, Discovery Rule Does Not Apply to Will Contests

In Evans v. Allen, there were two wills at issue.The second will was probated, and more than two years after that Evans, the great niece of the testator, brought suit to set aside the second will and probate the first will. Even though she brought her contest action outside of the two year statute of limitations, she argued that her contest was still timely because it was within two years of when the executor served her with an original petition to recover estate assets. It was not until that time that she learned the second will existed and had been admitted to probate. 

The 1st Court of Appeals in Houston affirmed the judgment of the lower court that held the discovery rule does not apply to will contests. The only exception listed in the probate code is when one discovers fraud or forgery, and action can be brought within two years of discovering that fraud or forgery. Probate records are public records, which provides constructive notice to all parties who might want to contest a will. The fact that a person is not actually aware of the probate does not circumvent the statute of limitations. 

See Michael Young, Evans v. Allen: No General Discovery Rule in Will Contests, Texas Probate Litigation, Nov. 23, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing this article to my attention.