Declarations Available for Texas Estate Probate Attorneys In Will Contest Cases.
Jurisdiction of Texas Probate Courts
Language Empowering Texas Estate Probate Attorneys & Probate Courts
The following is the key language of the “general” statute empowering probate courts under the Declaratory Judgments Act:
“A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”
Tex. Civ. Prac. & Rem. Code § 37.004(a)
“A contract may be construed either before or after there has been a breach.”
Tex. Civ. Prac. & Rem. Code § 37.004(b)
The language is fairly straightforward and traces back to the historical basis for declarations, the promotion of resolutions outside the normal remedial structure. In fact, in Section 37.002, the legislature recited language concerning the purposes and construction of the statute:
“This chapter is remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered.”
Tex. Civ. Prac. & Rem. Code § 37.002(b)
The emphasis here on “liberally construed and administered,” which is something Texas estate probate attorneys may wish to consider pointing out to trial courts when pursuing the strategy for declarations to promote settlement and resolution.
Texas Probate Court’s Power in Declaratory Judgments
Section 37.004 is the primary Declaratory Judgments Act section, although several other sections in the Civil Practice and Remedies Code, the Property Code, the Property Code, and the Estates Code are also declaratory in nature and borrow heavily, if not entirely, from the constructs of the main Act.
Courts have the power to declare rights, status, or other legal relations, and such power will not impede a cause of action based on that declaration being prayed for.1 Declarations requested by Texas estate and probate lawyers may be affirmative or negative.2
1 Tex. Civ. Prac. & Rem. Code § 37.003(a)
2 Tex. Civ. Prac. & Rem. Code § 37.003(b)