W.C. Cowan and his sister Ora Lea Scott could not wait for their mother Rosa to die.
That is not to say that they wanted Rosa dead. Quite the opposite: they wanted her to live at least until they could get a court order ruling that her will was invalid.
Rosa and her husband J.C. had three children: W.C., Ora and James.
On May 16, 1949 Rosa signed a will leaving her husband J.C. her household furniture, clothing and her interest in the lease on the house in which they were living, and leaving everything else to their son James. The will provided that if Rosa’s husband died before she did, then the share left to him would go to James, and that if James died before she did, then James’ share would go to his three children.
Under the terms of Rosa’s will, upon her death her son W.C. and her daughter Ora Lea would receive nothing.
- Rosa’s husband J.C. died in 1951.
- Rosa did not change her will.
W.C. and Ora Lea were apparently upset that, upon their mother’s death, they would be cut out of an inheritance that they viewed as rightfully theirs.
So they sued their mother (then in her late 70s), their brother James and James’ three children.
W.C. and Ora Lea used a procedural vehicle called a Declaratory Judgment to ask the court to declare Rosa’ will invalid.
To support their lawsuit, W.C. and Ora Lea alleged some pretty harsh things. W.C. and Ora Lea said that on May 16, 1949 their mom lacked capacity to make her will and that she had suffered from insane delusions. Then they accused James and his wife Vivian from unduly influencing Rosa. They claimed their mom was non compos mentis and that she would never regain her mental faculties.
They demanded that their mom show up in court so the judge and a jury could determine her mental status, both at that time and at the time she executed the will.
It turned out that W.C. and Ora Lea were a bit premature in making those claims. Why? Because Rosa was not yet dead.
It has always been the law in Texas that a court does not have jurisdiction to determine the validity of a will of a person still living. It did not matter that W.C. and Ora Lea tried to disguise their claim as a declaratory judgment action. The court looked straight through that and called it out for what it was: a will contest. And you can’t do a will contest until the person who made the will is dead.
The decision in Cowan v. Cowan was issued on October 27, 1952. That was the law then, and it remains the law today.
In Texas, the court does not have jurisdiction to probate the will or open a probate estate of a person who is still alive. Life is an absolute defense to the court action.
And you have the right to disinherit your kids.
Virginia, a 1982 SMU law school graduate, has advised clients for over 35 years. For more information, visit hammerle.com, and for newsletter sign-up, email email@example.com. This column does not constitute legal advice.