In Allebach v. Gollub, the decedent had three children, and after he died, one of them filed a will contest and a claim that the decedent’s marriage to his second wife was void. No. 14-22-00272-CV, 2023 Tex. App. LEXIS 3469 (Tex. App.—Houston [14th Dist.] May 23, 2023, no pet. history). The plaintiff filed a will contest, alleging among other things that the decedent had been suffering from memory declines and that he lacked testamentary capacity. She also sought to probate an earlier will, in which she was a beneficiary. Furthermore, she asserted several causes of action against the new wife, and sought a declaratory judgment that the marriage was void as a matter of law because the new wife was the daughter of the decedent’s biological sister—which made her the niece of the decedent and the cousin of his children. The trial court granted summary judgment for the plaintiff on the claim voiding the marriage, and the new wife appealed.

The court discussed the standards for voiding a marriage:

Texas law presumes that every marriage is valid “unless expressly made void by Chapter 6 [of the Texas Family Code] or unless expressly made voidable by Chapter 6 and as annulled as provided by that chapter.” This presumption applies to the marriage between Anna and the decedent because, even though their marriage was performed in another state, they were domiciled here in Texas. To overcome this presumption, Julie had the burden of proving that the marriage between Anna and the decedent was either void or voidable. There are significant differences between these two types of invalid marriages.

Voidable marriages are identified in Subchapter B of Chapter 6, which is entitled “Grounds for Annulment,” and they include marriages that are founded on such grounds as fraud and mental incapacity. To challenge a voidable marriage, a party must bring a suit for annulment. And this suit must be brought before the death of either party to the marriage, except as provided by the Texas Estates Code. See Tex. Fam. Code § 6.111.

Void marriages, on the other hand, are identified in Subchapter C of Chapter 6, which is entitled “Declaring a Marriage Void,” and they include marriages founded on grounds such as consanguinity. To challenge a void marriage, a party must bring a suit to declare the marriage void. And under our common law, such suits may be brought “by anyone, at any time, directly or collaterally.”

Id. (internal citations omitted). The court held that the evidence proved that the new wife was the defendant’s niece as matter of law, which was not contradicted by any evidence of the new wife.

The new wife argued that the claim to void the marriage was barred by the statute of limitations. The court stated:

 Anna relies specifically on Section 123.102 of the Texas Estates Code, which provides in material part that “if a proceeding described by Section 123.101(a) is not pending on the date of a decedent’s death, an interested person may file an application with the court requesting that the court void the marriage of the decedent if . . . the marriage commenced not earlier than three years before the date of the decedent’s death.” Anna then refers to Julie’s own summary-judgment evidence to prove the application of this statute, because Julie attested in her affidavit that the decedent married Anna more than four years before his death. By advocating for the application of this statute of limitations, Anna implicitly suggests that Section 123.102 has supplanted the common law rule that a void marriage may be challenged “at any time.”… Altogether, the text and structure of Subchapter C of Chapter 123 reflect a singular focus of invalidating a marriage on the ground of mental incapacity, which makes a marriage voidable, not void. Thus, the limitations provision contained within Section 123.102 should only be understood to apply to a challenge to a marriage made voidable on the ground of mental incapacity. This understanding comports with the plain language of the statute, and it also preserves the longstanding common law rule that challenges to void marriages are not subject to limitations.  Because Julie sought a declaration that the marriage between Anna and the decedent was void on the ground of consanguinity, rather than voidable on the ground of mental incapacity, we conclude that the limitations provision contained within Section 123.102 has no application to this case.

Id. (internal citations omitted). The court also disagreed that the plaintiff lacked capacity or standing to raise her claims. The court affirmed the trial court’s judgment voiding the marriage.

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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