Part 2: Prerequisites of Declaratory ReliefIn Texas Will Contest Cases.
This is part 2 of declaratory relief prerequisites for Texas contested wills. In Part 1 we went over the first three prerequisites and today we will discuss the last three prerequisites of declaratory relief.
Jurisdiction of Texas Probate Courts
The jurisdiction of the probate courts to hear matters is one of the first limiting factors of the scope of declaratory judgments for Texas probate attorneys. San Antonio probate lawyers should pay heed.
The Declaratory Judgments Act is a procedural device only – it is not, and does not create, any new cause of action.1 Because it is merely a procedural device, the act confers jurisdiction generally on all courts of record, and it does not enlarge the existing jurisdiction or create new jurisdiction for the courts. If the case is already appropriately subject to a particular court’s jurisdiction (and that court is a court of record), then declaratory relief may be asserted.
Proving Jurisdiction for Declaratory Relief
The plaintiff’s petition must show that the claim for declaratory relief – that is, that the brewing controversy – is already within the jurisdiction of the court. Authority to grant declaratory judgment flows from general powers of courts to enter declaratory judgment under the Declaratory Judgments Act.2
If matters and issues involved in declaratory judgment action respecting construction of a Texas contested will are properly tendered in the Probate Court, another court of coordinate jurisdiction could not oust the Probate Court of its previously acquired jurisdiction in the will contest proceeding.3
Probate Court jurisdiction has remained largely the same following the repeal of the Probate Code in lieu of the Estates Code, although “incident to” and “appertaining to” an estate have been enlarged with the terminology as actions related to a “probate proceeding.”4
Statutory Bases For Declaratory Judgements in Texas Contested Will Cases
For declaratory judgments filed in a statutory probate court, jurisdiction will concern any of the following statutory bases:
- An action against a personal representative or former personal representative arising out of the representative’s performance of the duties of a personal representative
- An action against a surety of a personal representative or former personal representative
- A claim brought by a personal representative on behalf of an estate
- An action brought against a personal representative in the representative’s capacity as personal representative
- An action for trial of title to real property that is estate property, including the enforcement of a lien against the property
- An action for trial of the right of property that is estate property
- The interpretation and administration of a testamentary trust, if the will creating the trust, has been admitted to probate in the court
- The interpretation and administration of an inter vivos trust created by a decedent whose will has been admitted to probate in the court
- Any cause of action in which a personal representative of an estate pending in the statutory probate court is a party in the representative’s capacity as personal representative.5
Venue of a Declaratory Judgment
Venue of a declaratory judgment action depends on the case, and on the specific nature of the facts alleged. Actions for declaratory judgments are governed by general venue rules for civil actions.6
Consideration should be given to the pleadings, as courts will consider the facts alleged to determine the proper venue. In the context of venue for a trust matter, even if the construction of a trust will impact realty (assuming that venue is not already fixed as an action related to a probate proceeding), the mandatory venue provisions related to land may not apply.
“The character of a case with respect to the application of our venue statute must be determined by the facts alleged, the rights asserted thereunder, and the relief prayed for. . . . [A proceeding to construe a trust] is a transitory action, rather than a local one, it is primarily a proceeding in personam, rather than a proceeding in rem.”
Shellberg v. Shellberg, 428 S.W.2d 117, 121 (Tex. Civ. App. – Fort Worth 1968, writ dism’d)
Had the petitioner chosen to seek (once again, “frame”) the request for declaration as one primarily concerning the real estate, as opposed to the construction of the trust, perhaps the court would have reached a different conclusion.
Declaratory judgment actions in probate court do not accrue until a controversy arises between the parties, and therefore statutes of limitation do not operate independently from the underlying action. Declaratory judgment suits are a procedural mechanism used to vindicate underlying issues, and so the limitations period depends on the limitations period for the underlying controversy. As well, “a cause of action under the Declaratory Judgments Act does not accrue until there is an actual controversy between the parties.”7
Because there is no statutory limitations period in the Estates Code for bringing construction actions, the four-year statute of limitations applies to Texas contested will cases.8 The determination of the date on which a cause of action accrues is a question of law for the court.9
1 Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996)
2 Bonham State Bank v. Beadle, 907 S.W.2d 465 (Tex. 1995)
3 Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 585 (Tex. 1993); Smith v. Negley, 304 S.W.2d 464 (Tex. Civ. App. – Austin 1957, no writ)
4 Tex. Est. Code §31.002
5 Tex. Est. Code §31.002(a) – (c)
6 In re Cont’l Airlines, Inc., 988 S.W.2d 733, 735 (Tex. 1998); see generally Tex. Civ. Prac. & Rem. Code § 15.001, et seq
7 Shellberg v. Shellberg, 428 S.W.2d 117, 121 (Tex. Civ. App. – Fort Worth 1968, writ dism’d)
8 Id. at 144; In re: Estate of Florence, 307 S.W.3d 887, 890 (Tex. App. – Fort Worth 2010, no pet.)
9 Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274 (Tex.2004)