In In re Meeker, individuals sought a mandamus to reverse a trial court’s order granting a Rule 202 pre-suit deposition order. No. 02-16-00103-CV, 2016 Tex. App. LEXIS 6883 (Tex. App.—Fort Worth June 29, 2016, original proceeding). After accepting some benefits under a will and after not opposing its probate, an heir filed a Rule 202 petition for pre-suit deposition. Another individual then filed an intervention to join in the petition. The trial court granted both petitions, and the executor of the will and defendants filed a petition for writ of mandamus. The court of appeals issued a writ of mandamus as to the intervention, but not as to the order allowing the pre-suit deposition. The court described the procedure for a Rule 202 pre-suit deposition as follows:

Rule 202 allows a person to petition a court for an order authorizing the taking of a deposition to “perpetuate or obtain the person’s own testimony or that of any other person for use in an anticipated suit” or “to investigate a potential claim or suit.” A rule 202 petition must be verified and must state either that “the petitioner anticipates the institution of a suit in which the petitioner may be a party” or that “the petitioner seeks to investigate a potential claim by or against petitioner.” The petition must also “state the subject matter of the anticipated action, if any, and the petitioner’s interest therein.” Further, the petition must “state the names, addresses[,] and telephone numbers of the persons to be deposed, the substance of the testimony that the petitioner expects to elicit from each, and the petitioner’s reasons for desiring to obtain the testimony of each.” The court may order a deposition to be taken if it finds that “allowing the petitioner to take the requested deposition may prevent a failure or delay of justice in an anticipated suit” or that “the likely benefit of allowing the petitioner to take the requested deposition to investigate a potential claim outweighs the burden or expense of the procedure.” As we have explained, “Rule 202 depositions are not now and never have been intended for routine use. There are practical as well as due process problems with demanding discovery from someone before telling them what the issues are. . . . Accordingly, courts must strictly limit and carefully supervise presuit discovery to prevent abuse of the rule.”

Id. at *10-11. The court held that the applicant sufficiently met these requirements and that the trial court did not clearly abuse its discretion in granting the relief. The court only addressed one issue regarding the applicant’s request, the acceptance-of-the-benefits doctrine as it applies to will contests. The court held that the general rule was that acceptance of benefits in a transaction forecloses an inconsistent challenge to the transaction and upon the more particular principle that one who accepts benefits under a will generally has no standing to contest it. The rule concerning acceptance of benefits is designed to prevent “one from embracing a beneficial interest devised to him under a will, and then later asserting a challenge of the will inconsistent with the acceptance of benefits.” However, the court noted that “Texas courts have held that when a successful challenge to a transaction would not affect the entitlement to benefits already received, there is no inconsistency inherent in the challenge and, thus, no estoppel.”

The court cited to an earlier opinion, Holcomb v. Holcomb, 803 S.W.2d 411, 414 (Tex. App.—Dallas 1991, writ denied), which held that “Sid must demonstrate that Anita had in fact received benefits to which she would not be entitled under either will . . . . From the record before us, Sid has failed to establish as a matter of law that Anita accepted benefits under the probated will over those which she would otherwise have been entitled to.” Id. (emphasis added). So, the court held that simply accepting a benefit under a will was not enough to trigger acceptance of the benefits where the party would also be entitled to that benefit under a different will. In other words, if a party receives $10,000 under will A, accepts those funds, and then challenges will A in favor of Will B, the party will not be estopped from making that challenge if the party will receive $10,000 or more under Will B. There is other caselaw that disagrees with Holcomb and its holding. In re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App.—Texarkana 1996, writ denied).

The court concluded that: “The prevailing recognition and application of the exception in other jurisdictions to acceptance of benefits under a will, and the consistent application of the exception in Texas to acceptance of benefits under all other instruments, including judgments, persuades us that the exception applies to will challenges and may apply to these facts.” The court denied the mandamus to the ruling granting the pre-suit deposition.

The court then granted mandamus relief regarding the intervention. The court held that the intervenor did not allege any personal interest or claim in seeking the deposition. Rather, she relied upon the original applicant’s claim and standing. The court held that this did not meet the strict procedural requirements for a Rule 202 deposition petition.

Finally, there was a dissent in this case on the acceptance of the benefits issue. The dissenting justice disagreed with the majority’s reliance on the Holcomb exception:

To the extent Alan claims, and the Majority Opinion holds, that under the case of Holcomb v. Holcomb, 803 S.W.2d 411 (Tex. App.—Dallas 1991, no writ) the acceptance-of-benefits doctrine does not apply because he would have received a larger share of Mr. Meeker’s estate under some other yet-to-be-identified will or the laws of intestacy, Holcomb has been criticized as contrary to binding Texas Supreme Court authority. Because Holcomb is, in my view, contrary to Trevino and is an aberration in the case law, it does not apply….

Here, Alan would not be entitled to the benefits he has already received under the Will; if Alan successfully prosecutes a contest to the Will and obtains a declaration that the Will is void based on Mr. Meeker’s alleged lack of capacity, Alan is entitled to no benefits under the Will. After a successful contest to the Will, Alan might be entitled to different and possibly greater benefits under a different will, or under the law of intestate, but Alan would not be entitled to the benefits he has already accepted under the Will if the Will is declared void.

Id. at *25-27.

Interesting Note: This is an interesting case in for two reasons: 1) the use of the Rule 202 pre-suit deposition procedure to investigate grounds for a will contest, and 2) the court’s analysis of the acceptance-of-the-benefits doctrine in the context of a will contest. A Rule 202 petition is a great option to investigate a claim of mental incompetence, undue influence, or other claims, especially where another party is not cooperating with the disclosure of information. If another party will not respond to requests for documents, explanations, and the identity of other third parties (doctors, attorneys, etc.), then a party can seek that information via a pre-suit deposition and document request without technically filing a full-blown contest. This procedure may also protect a party from the consequences of a no-contest clause.