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Declarations Available for Texas Estate Probate Attorneys

Declarations Available for Texas Estate Probate Attorneys In Will Contest Cases.


Jurisdiction of Texas Probate Courts

Under the Texas Civil Practice and Remedies Code Chapter 37 Section 37.004 there are declaratory judgments generally available for Texas estate probate attorneys in will contest cases.

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)


James Carter | Texas Will Contest Lawyer

James W. Carter

James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.


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