In In re Est. of Hartwell, a trial court granted summary judgment that the applicant to probate a will was not entitled to do so due to the statute of limitations. No. 06-23-00054-CV, 2024 Tex. App. LEXIS 166 (Tex. App.—Texarkana December 6, 2023, no pet. history). The decedent died in 2012, and her grandson attempted to probate her will in 2022. He claimed a right to purchase property under the will. The decedent’s children opposed the application, arguing that they were entitled to her property under the law of intestacy and filed a summary judgment motion. The trial court granted the summary judgment, and the grandson appealed.

The court of appeals affirmed. The court cited to the Texas Estate Code Section 256.003(a), which states: “a will may not be admitted to probate after the fourth anniversary of the testator’s death unless it is shown by proof that the applicant for the probate of the will was not in default in failing to present the will for probate on or before the fourth anniversary of the testator’s death.” Id. “Default” means “failure to probate a will because of the absence of reasonable diligence on the part of the party offering the instrument.” Id.

The children attached evidence to their motion for summary judgment that established that (1) the grandson had been in possession of the will since 2004, (2) the decedent died in 2012, and (3) the grandson did not file an application to probate the will until 2022, well past the four-year statute. “As a result, the burden shifted to Hartwell to present evidence raising a genuine issue of material fact on the issue of default.” Id. The grandson argued that his father owed him a fiduciary duty because he trusted him. The court of appeals held that any claim for breach of fiduciary duty was waived by not raising it until the summary judgment response, and that there was no evidence that the father made any misrepresentation to the grandson concerning the will. The court affirmed the summary judgment rejecting the will for probate.