In In re Estate of Kam, Kam sought to set aside an order probating her brother’s will via a statutory bill of review because he purportedly lacked the requisite testamentary capacity to execute the will or the will was the result of undue influence. No. 05-16-00126-CV, 2016 Tex. App. LEXIS 13837, *13-14 (Tex. App.—Dallas December 29, 2016, no pet. history). The trial court denied the bill of review, and Kam appealed.

Kam filed a statutory bill of review pursuant to Section 55.251 of the Texas Estates Code, which provides:

(a) An interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.

(b) A bill of review to revise and correct an order or judgment may not be filed more than two years after the date of the order or judgment, as applicable.

The court of appeals held that to prevail on her statutory bill of review, Kam was required to specifically allege and prove substantial error in the will contest judgment and had the burden to furnish the court of appeals with a record supporting her allegations of error by the probate court in denying her statutory bill of review. During the bill-of-review proceeding, Kam attached evidence to her bill of review petition, but did not offer any evidence at the hearing and failed to introduce into evidence the documents attached to her statutory bill of review. Even after opposing counsel pointed out that Kam had not offered any evidence and no evidence had been admitted by the probate court, Kam did not offer evidence or ask the probate court to take judicial notice of its file in the underlying will-contest case. The record did not show that the probate court sua sponte took judicial notice of its file. The court of appeals affirmed the denial of the bill of review petition, stating: “On this record, we conclude the probate court could reasonably have concluded Carol did not carry her burden to establish substantial error in the will contest judgment.” Id.

Interesting Note: This case illustrates the importance of attorneys thinking about the legal issues and evidence that are necessary to meet their burden of production and persuasion. Before a hearing or trial, it is very important to think about a future appeal. For example, an attorney should consider the following questions. What evidence is necessary to show the court of appeals that an error occurred in the trial court? In what form do I need to get the evidence to make it admissible? If a court excludes my evidence, how will I preserve error regarding that exclusion? How will I make my legal issues known to the court (and ruled on) so that I can present them to the court of appeals? Going through these simple questions can help prevent the fate of the appellant in Kam.

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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law