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.