Article on Determining Effect of Devisee’s Default on Successors

Taylor Whitlow recently published an Article entitled, Navigating the Legal Quagmire of Offering a Will for Probate After the Statutory Four-Year Period: Texas’s View on the Issue of Default, 68 Baylor L. Rev. 219 (2016). Provided below is a summary of the Article:

Although a will applicant is typically an executor of a will, there are three other common circumstances under which an applicant seeks to probate a will: (1) the will applicant is a devisee under the will; (2) the will applicant is a successor in interest, meaning either an heir or a devisee of a devisee under the will; or (3) the will applicant is a purchaser from a devisee under a will that has not yet been probated. The purpose of this Comment is to determine what effect, if any, a devisee’s default has on his or her successors in interest or a purchaser, and if there is an effect, under what circumstances a devisee’s default will be attributable to each type of applicant. Part II of this Comment sets forth the rule applied when the will applicant is a devisee under the will sought to be probated. Part III of this Comment discusses the situation in which the will applicant is a successor in interest, meaning either an heir or a devisee, of a devisee under the will sought to be probated and compares and contrasts differing courts of appeals’ conclusions regarding default in this type of case. Part IV of this Comment addresses the situation in which the will applicant is a purchaser from a devisee under a will that has not yet been admitted to probate and seeks to question the reasoning underlying the long-standing rule applied in this specific circumstance. Part V of this Comment concludes the Comment with practical information for attorneys regarding applications for probate of a will where default is likely to be an issue.