In In re Estate of Johnson, an administrator and a third party appealed the trial court’s judgment setting aside the probate of the decedent’s will, removing the administrator, and voiding the sale of an estate asset to the third party. No. 05-23-00087-CV, 2024 Tex. App. LEXIS 7635 (Tex. App.—Dallas October 28, 2024, no pet. history). The administrator filed an application to admit the will to probate, and her brother signed a “308 Waiver and 401 Agreement to a Court Created Independent Administration,” in which her brother waived “notice of service and objections in this matter” and agreed that his sister should be the independent administrator. At the hearing, the administrator proved up the will, and it was admitted to probate. Later, the brother filed a contest, alleging that the will was forged. After a hearing, the trial court set aside the probate of the will, and the administrator appealed.

The administrator first argued that the trial court could not consider her brother’s testimony based on the doctrine of judicial estoppel. “Judicial estoppel bars a party from successfully maintaining a position in one action and then maintaining an inconsistent position in a subsequent action.” The court of appeals noted, however, that a “will contest and the probate of the will are two parts of the same proceeding, and . . . inconsistent positions within that proceeding cannot be barred by the doctrine of judicial estoppel.” Id. The appellate court held that judicial estoppel was inapplicable.

The administrator also argued that the trial court abused its discretion when it did not exclude her brother’s testimony because his waiver and agreement constituted a quasi admission that was a judicial admission. The appellate court held that “A judicial admission is a formal waiver of proof that dispenses with the production of evidence on an issue. The fact-finder must take it as true and a party may not introduce evidence to contradict it so long as the statement stands unretracted.” Id. The court concluded, “We need not decide whether by his waiver and agreement Johnson judicially admitted that the May 24, 2018 will was valid because he later retracted it when he filed his objections, nullifying any treatment as a judicial admission.” Id.

The trial court found that “No admissible evidence was presented to establish that the May 24, 2018 Will was executed in the presence of Martha Brown and Mary Pierce, the two purported attesting witnesses.” Id. However, the court of appeals held that the trial court erred by shifting the burden from the will contestants to the original will proponents. “A court considering a will contest may not—as the court’s findings indicate it did here—require that will formalities be re-proven as a pre-condition to denying a will contest.” Id.

The court of appeals then reviewed the evidence by the brother, and held that it was not sufficient to support the trial court’s order setting aside the last will:

At the hearing on the will contest, Mr. Johnson testified that he was the decedent’s son, that he had dealt with his mother’s affairs for over 40 years, that he had managed his mother’s affairs for 22 years, that he had his mother’s driver’s license with her signature on it, that he had witnessed his mother sign documents throughout his lifetime, that he was familiar with her signature, and that the signature on the May 24, 2018 will was not his mother’s…

Moreover, Mr. Johnson had filed the “308 Waiver and 401 Agreement” in court October 8, 2020, after all these events occurred and after he possessed all the information he relied on at the contest trial to attempt to retract his waiver. In that waiver, he made affirmative representations that his mother “left a valid written Will (“Will”) dated May 24, 2018,” and that he “acknowledge[d] that [he] ha[d] received a copy of said Will. Such Will was never revoked.” He represented that he was “a named beneficiary in the Will” and that he had “received a copy of the documents previously filed in this matter, including a copy of the Will,” and that “each statement contained therein is true and correct.” This includes the application to admit the May 24, 2018 will to probate and representations made therein.

Mr. Johnson’s current testimony that the handwriting on the May 24, 2018 will was not his mother’s handwriting is troubling, but this record provides for but one conclusion: no evidence in the will contest provides a legally sufficient basis to undo the original probate proceedings. Mr. Johnson admitted knowing all the facts he sought to use to retract his waiver before he signed and filed the waiver in early October 2020. For that reason, the contest evidence does nothing more than raise surmise or suspicion, particularly in light of Ms. Brown’s original testimony that Ms. Johnson signed the will before her and Ms. Pierce.

Id.