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Click here for the full text of this decision FACTS:Lloyd Fowler Sr. appeals from the trial court’s denial of his application to set aside an Order Probating Will, to Reinstate Application to Probate Holographic Will and Application for Bill of Review. In this instrument, Fowler challenged the admission to probate of a will signed by his mother and requested that a holographic will be admitted to probate. At the time of her death, Fowler’s mother was survived by her husband and five of her children from a prior marriage, including Fowler. The mother executed a will in 1997, but also signed a holographic will in 1998. The most significant difference between the gifts the mother made in the 1997 will and the 1998 will was the distribution she made of certain land. Fowler filed his application to set aside an order probating the 1997 will, pursuant to 93 of the Texas Probate Code, and also filed a bill of review under 31 of the Texas Probate Code. In his application, Fowler complained that he was not given notice of the probate hearing at which the county judge admitted the 1997 will to probate, and also complained of other errors in the county judge’s decision to admit the 1997 will to probate. The county judge, on his own motion, transferred the case to the district judge, which held a trial on Fowler’s application. No party requested a jury trial on the contested matters. Following the hearing, the district court denied Fowler’s request to set aside the order admitting the 1997 will to probate and Fowler appealed. HOLDING:Affirmed in part; reversed and rendered in part. Fowler complains that he did not have notice of the application to probate the subject will; that the court erred in admitting the subject will to probate; that judicial estoppel operates to prevent the probate of the subject will; and that the great weight and preponderance of evidence at the bill of review hearing supported the holographic will that he offered as his mother’s last will and testament. The court holds that the county judge erred in probating the 1997 will without proper notice as required by Texas Probate Code 128B, and that the district court erred in failing to grant the bill of review wherein Fowler complained of the absence of proper notice. But the court also found that on proper proof, the district court could have admitted the 1998 holographic will to probate. Thus, the court concluded that any error committed by the county court’s failure to issue citation to give Fowler notice of the hearing was rendered harmless. The court states that the proponents of the 1997 will had the burden of showing an excuse to justify their failure to timely offer the 1997 will for probate. The only excuse offered by any of the children regarding the delay in submitting the 1997 will to probate was that the delay in probating the will was out of respect for their stepfather. The record reflects that he died in October 2002. The court noted that it is possible that Wilburn might have opposed either of these wills. Under both wills, he was intentionally disinherited. The court states that it can find no opinion in which an appellate court construing 73 of the Texas Probate Code has recognized respect for potential heirs as an excuse for the devisees’ delay in presenting a will for probate. Consequently, the court holds that it was error to admit the 1997 will to probate because it was offered without a legal excuse beyond the four-year period after Fowler’s mother’s death. The court also holds that Fowler failed to meet his burden of proving testamentary capacity with respect to the 1998 holographic will, and, as a result, the district court did not err in refusing to admit the 1998 holographic will to probate. The court affirms the district court’s judgment denying the probate of the 1998 holographic will, but reverses the district court’s judgment admitting the 1997 will to probate and renders judgment that its admission to probate be denied. OPINION:Horton, J.; McKeithen, C.J., Gaultney and Horton, JJ.

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