Beneficiary’s Pre-suit Discovery Not Estopped

Texas Rule of Civil Procedure 202 allows a limited method of discovery before filing suit, proving useful for those who want to investigate a potential claim. There are, however, some requirements that make it more limited in probate litigation than a regular lawsuit.

In In re Meeker, a son filed a Rule 202 petition for pre-suit discovery to help aid him in a potential will contest; he sought to find out whether his father had capacity at the time of will execution. The executor challenged this allowance on the basis that the son had already accepted benefits and therefore had no standing to contest the will. Looking at precedent, there are some cases that hold a person is estopped from contesting a will after accepting benefits; however, there are some cases that say a beneficiary is not estopped, if they stand to gain more from a successful contest. The latter is what the son was trying to prove, and the court of appeals agreed with him, finding that the exception to the estoppel rule applied

See J. Michael Young, Estoppel Does Not Prevent Beneficiary from Pre-suit Discovery, Texas Probate Litigation, July 5, 2016.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.