Is A Spouse An Interested Party in the Will of a Spouse if Not Named as Executor?
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Please see the following TX case law:
AGUIRRE v. BOSQUEZ, 4-06-00068-CV (Tex.App. [4th Dist.] 10-11-2006)
MINNIE BOSQUEZ AGUIRRE AND ADAM BOSQUEZ, Appellants, v. MARTHA LOWRIE
BOSQUEZ, INDEPENDENT EXECUTRIX OF THE ESTATE OF IGNACIO L. AGUIRRE,
DECEASED, Appellee.
No. 4-06-00068-CV
Court of Appeals of Texas, Fourth District, San Antonio.
Delivered and Filed: October 11, 2006.
Appeal from the 218th Judicial District Court, Atascosa County,
Texas, Trial Court No. 05-10-0756-Cva, Honorable Donna S. Rayes,
Judge Presiding.
Affirmed in Part and Reversed and Remanded in Part.
Sitting: ALMA L. LÓPEZ, Chief Justice, Catherine STONE,
Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Opinion by: CATHERINE STONE, Justice.
Minnie Bosquez Aguirre and Adam Bosquez appeal the trial
court's grant of a plea in abatement of their case based on a
lack of standing. We affirm in part and reverse and remand in
part.
Factual and Procedural Background
Ignacio L. Aguirre died December 26, 2001, leaving a will which
devised nothing to his surviving spouse, Minnie. The appellee,
Martha Lowrie Bosquez, was appointed as the Independent Executrix
of the estate, and as the executrix, she filed an inventory of
the estate which listed the real property and the personal
property of the community estate at an estimated value of $20,000
and $6,900, respectively. Ignacio's will was admitted to probate
on March 12, 2002; however, neither of the appellants contested
the will. After Ignacio's death, but before his will was admitted
to probate, Minnie transferred, by general warranty deed, her
interest in any real property of the community estate to her son,
Adam Bosquez.
Appellants subsequently filed a petition for an accounting and
distribution of Ignacio's estate. Martha answered with a general
denial and a plea in abatement claiming appellants lacked
standing to file their petition. Appellants requested discovery;
however, Martha filed an objection to any form of discovery.
Ultimately, the trial court granted the plea in abatement as well
as Martha's objection to discovery.[fn1] On appeal,
appellants allege: 1) Minnie has standing as an interested person
because she is Ignacio's surviving spouse; 2) Adam has standing
as an interested person because he has a property right in
Ignacio's estate; and 3) the trial court erred when it refused to
allow appellants to obtain discovery to prove they were
interested persons of Ignacio's estate.
"Interested Party" Standing
Standing is a necessary element of subject matter jurisdiction
and it involves the court's power to hear a case. See Hunt v.
Bass, 664 S.W.2d 323, 324 (Tex. 1984). As a general rule,
standing is obtained when a plaintiff can demonstrate a
particular injury distinct from one to that of the general
public. Id. "However, the [P]robate [C]ode generally places a
heavier burden on the would-be litigant in probate matters,
requiring that the party qualify as an `interested person.'" A&W
Indus., Inc. v. Day, 977 S.W.2d 738, 741 (Tex.App.-Fort Worth
1998, no pet.) (citing Tex. Prob. Code Ann. §§ 76, 93, 222). The
Probate Code defines "interested persons" as "heirs, devisees,
spouses, creditors, or any others having a property right in, or
claim against, the estate being administered. . . ." Tex. Prob.
Code Ann. § 3(r) (Vernon 2003).
Minnie's Standing
Minnie claims that the trial court erred in granting Martha's
plea because Minnie has standing to demand an accounting as
Ignacio's surviving spouse. We agree. Section 149A provides that
"any interested person in the estate may demand an accounting
from the independent executor." Id. § 149A(a) (Vernon
2003).[fn2] Furthermore, Section 3 makes it clear that
Minnie, as a surviving spouse, is an interested person for
purposes of probate. Id. § 3(r).
Although Martha does not contest that Minnie was married to
Ignacio at the time of his death, she contends that Minnie lacks
standing for several reasons. First, Martha argues that Minnie
lacks standing because Ignacio specifically disinherited Minnie
in his will. In the alternative, Martha asserts that Minnie lacks
standing because she disposed of any homestead right she had in
the community property by transferring such interest to Adam by a
general warranty deed. Next Martha claims that Minnie had the
burden of proof to show she had standing, but because Minnie
provided no evidence to the trial court, she failed to meet her
burden. Finally, Martha states that due to Minnie's recent death,
any claim she may have had as a surviving spouse has terminated.
Martha's argument that Minnie lacks standing because she was
disinherited in Ignacio's will is misguided. The plain language
of Section 3 provides that an heir, devisee, OR spouse
qualifies as an interested person. Id. § 3(r) (emphasis added).
Heirs are "those persons, including the surviving spouse, who are
entitled under the statutes of descent and distribution to the
estate of a decedent who dies intestate." Id. § 3(o). Because
Ignacio did not die intestate, Minnie does not qualify as an
"heir." A devisee is one who takes real or personal property
pursuant to a testamentary disposition. Id. § 3(h), (o). While
Ignacio's decision to disinherit Minnie in his will may not make
Minnie a devisee either, it is undisputed that Minnie was
Ignacio's surviving spouse. A surviving spouse is one of the ways
to qualify as an interested person under the Probate Code;
therefore, Minnie's ability to qualify as an heir or devisee is
irrelevant.
In Martha's second contention, she claims that Minnie lacks
standing because she waived her homestead interest in the estate
by conveying her interest to her son. This argument is also
incorrect. Besides being an heir, devisee, or spouse, one may
qualify as an interested person because he has a property right
in or a claim against the estate. Id. § 3(r). Thus, Martha's
argument that Minnie lacks a homestead interest in the estate is
merely another way of stating that Minnie does not qualify as an
interested person because she has no claim against Ignacio's
estate. Our analysis concerning Martha's initial argument applies
here as well. Whether Minnie retained a homestead interest is not
the dispositive question; rather, it is whether she qualifies as
an heir, devisee, person with a property right in the estate, or
a spouse. Because Minnie qualifies as Ignacio's surviving spouse,
we overrule this argument. Even if Martha's contention were
correct, it would still fail because Minnie transferred only her
interest in the real property of the community estate; however,
she retained her interest in the personal property of the
community estate.
Third, Martha maintains Minnie lacks standing because it was
her burden at trial to show standing, yet she provided no
evidence of an interest in the estate. When the issue of standing
is unchallenged, a trial court looks solely at the plaintiff's
pleadings; however, when challenged, "the burden of proof is on
the person whose interest is challenged to present sufficient
evidence . . . to prove that he is an interested person." A&W
Indus., Inc., 977 S.W.2d at 741. Again, it is undisputed that
Minnie was Ignacio's surviving spouse, and Martha admits to such
numerous times. Additionally, Minnie attached several documents
to her response to the plea in abatement which illustrated
Minnie's relationship to Ignacio. Minnie established that she was
Ignacio's spouse, and accordingly, her burden of proof was met at
the trial court.
Finally, Martha argues that due to Minnie's recent death, her
claims as a surviving spouse are extinguished. The Texas Rules of
Appellate Procedure provide:
If a party to a civil case dies after the trial court
renders judgment but before the case has been finally
disposed of on appeal, the appeal may be perfected,
and the appellate court will proceed to adjudicate
the appeal as if all parties were alive. The
appellate court's judgment will have the same force
and effect as if rendered when all parties were
living. The decedent party's name may be used on all
papers.
Tex.R.App.P. 7.1.
Here, Minnie died after the trial court rendered judgment, but
before this court disposed of this case on appeal. As a result,
this court's judgment will have the same effect as if Minnie were
still alive. See id.
We conclude that Minnie had standing to demand an accounting of
Ignacio's estate pursuant to Section 3(r) of the Probate Code
because she was Ignacio's spouse at the time of his death. The
trial court's dismissal of Minnie's claim was erroneous; thus,
the judgment as to Minnie should be reversed and the cause
remanded to that court for further proceedings.
Adam's Standing
Like Minnie, Adam asserts that he qualified as an interested
person of Ignacio's estate; however, he claims an interest due to
his property right or claim against the estate which he obtained
from Minnie's general warranty deed of her one-half of the
community real property. On the other hand, Martha argues that
the general warranty deed did not establish Adam's status as an
interested person. Specifically, Martha contends: 1) Adam was not
an heir or devisee of Ignacio, thus he had no pecuniary interest
in Ignacio's estate; and 2) although Adam obtained Minnie's
one-half interest in the community real property, he has no
interest in Ignacio's one-half interest, and therefore, he has no
interest in Ignacio's estate.
We agree with Martha's first contention; Adam is not an heir or
devisee of Ignacio. However, Adam never claims to be either an
heir or devisee. Consistent with our analysis concerning Minnie,
Section 3(r) provides numerous alternative means to qualify as an
interested person. Id. § 3(r). Adam claims to be an interested
person via the last alternative: a person having a property right
in the estate being administered. Id. The question this court
must answer is whether Adam has a property interest or claim to
Ignacio's estate due to Minnie's deed of her interest in the
community real property. We hold that Adam is not an interested
person.
An estate is the total property, real and personal, which a
decedent owns at death. Black's Law Dictionary 588 (8th ed.
2004). As for the community estate, Minnie "was the equal owner
in her own right of one-half of that estate" during the marriage
and at the time of Ignacio's death. Jones v. State,
5 S.W.2d 973, 975 (Tex. Comm'n App. 1928); see also Calvert v. Fort Worth
Nat. Bank, 356 S.W.2d 918, 921 (Tex. 1962); Chadwick v.
Bristow, 204 S.W.2d 65 (Tex.Civ.App.-Austin, 1947). Upon a
spouse's death, the surviving spouse does not take their own
one-half interest in the community estate as an heir; rather, the
surviving spouse is the owner of the one-half interest of the
property due to the dissolution of the marriage. See id.
(Citing King v. Morris, 1 S.W.2d 605 (Tex. Comm'n App. 1928)).
As a result, upon Ignacio's death, Minnie could, and did, convey
her community interest to Adam. On the other hand, Ignacio could
dispose of his one-half interest through his will, which he
clearly chose to do. As an interested person, Adam must have
"some legally ascertained pecuniary interest, real or
prospective, absolute or contingent, which will be impaired or
benefitted, or in some manner materially affected, by the probate
[proceeding]." Logan v. Thomason, 202 S.W.2d 212, 215 (1947).
Adam has no pecuniary interest in the other undivided one-half of
the community estate. Additionally, Adam fails to explain how
Ignacio's choice as to whom he leaves the property, is a decision
which would materially affect Adam's one-half interest. Because
Adam does not possess a property right in Ignacio's estate, the
trial court correctly concluded that Adam lacked standing.
Discovery
In their final issue, appellants complain they had the burden
of proof to establish standing and should have been allowed
discovery to fulfill this burden; therefore, the trial court
erred by granting Martha's objections to discovery. Because we
have concluded that Minnie has standing under the plain language
of Section 3(r), she is entitled to discovery under the rules of
procedure.
A discovery request must be reasonably tailored to include only
issues relevant to the case. In re. Am. Optical Corp.,
988 S.W.2d 711, 712 (Tex. 1988). The rules of civil procedure
encourage trial courts to limit discovery when "the burden or
expense of the proposed discovery outweighs its likely benefit,
taking into account the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues
at stake in the litigation, and the importance of the proposed
discovery in resolving the issues." Tex. R. Civ. P. 192.4(b).
Trial courts are afforded broad discretion in limiting the scope
of discovery. Dillard Dep't Stores, Inc. v. Hall,
909 S.W.2d 491, 492 (Tex. 1995). However, the party resisting discovery
cannot make conclusory allegations that the requested discovery
is unduly burdensome. See Garcia v. Peeples, 734 S.W.2d 343,
345 (Tex. 1987). We review a trial court's discovery ruling under
an abuse of discretion standard. Gen. Tire, Inc. v. Kepple,
970 S.W.2d 520, 526 (Tex. 1998).
Martha objected that the "discovery cannot possibly be relevant
unless and until defendant's plea in abatement [is] overruled and
[appellants] show the Court that . . . either of them□ have an
interest in the estate. . . ." Further, Martha stated that a
response to "discovery would be burdensome on the estate and
would deplete the estate and would cause the estate to incur
attorney fees that could not be recovered in the event that
[appellants] are unsuccessful in establishing that they have an
interest in the estate." In light of our determination that
Minnie has an interest in the estate, these objections are not
valid. However, because we have determined that Adam does not
have an interest in the estate, we cannot say the trial court
erred in granting the objections to Adam's discovery requests. We
overrule appellants' final issue in part.
Conclusion
We affirm the trial court's decision that Adam lacked standing
to demand an accounting of Ignacio's estate; however, we reverse
the trial court's judgment that Minnie lacked standing and remand
the cause for further proceedings consistent with this opinion.
[fn1] A plea in abatement is an interlocutory order and is not
subject to appeal. Johnson v. Avery, 414 S.W.2d 441, 443 (Tex.
1966). However, standing is an issue concerning subject matter
jurisdiction and a plea to the jurisdiction is an appropriate
vehicle used to contest this issue at the trial court. See Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Here,
the trial court held that the plea should be granted "being in
the nature of a plea in bar" and "it being the intention of the
Court to make this a final and appealable order and judgment."
See Black's Law Dictionary 1192 (8th ed. 2004) (defining a
"plea in bar" as one "that seeks to defeat the plaintiff's . . .
action completely and permanently"). Although the plea at issue
is labeled as a plea in abatement, the court may treat the plea
in abatement as a plea to the jurisdiction. See Bland Indep.
Sch. Dist., 34 S.W.3d at 552. From the language of the trial
court's judgment, we conclude that this is what the trial court
intended here.
[fn2] Section 149A allows an interested person to demand an
accounting, and further, it provides that if an executor fails to
comply with the demand, the interested person may compel
compliance by an action filed in the appropriate court. Tex.
Prob. Code Ann. § 149A(a), (b) (Vernon 2003).
Please see the following TX statute:
§ 149A PROB. CODE. Accounting
(a) Interested Person May Demand Accounting. At any time after the
expiration of fifteen months from the date that an independent
administration was created and the order appointing an independent
executor was entered by the county court, any person interested in the
estate may demand an accounting from the independent executor. The
independent executor shall thereupon furnish to the person or persons
making the demand an exhibit in writing, sworn and subscribed by the
independent executor, setting forth in detail:
1. The property belonging to the estate which has come into his
hands as executor.
2. The disposition that has been made of such property.
3. The debts that have been paid.
4. The debts and expenses, if any, still owing by the estate.
5. The property of the estate, if any, still remaining in his hands.
6. Such other facts as may be necessary to a full and definite
understanding of the exact condition of the estate.
7. Such facts, if any, that show why the administration should
not be closed and the estate distributed.
Any other interested person shall, upon demand, be entitled to a copy
of any exhibit or accounting that has been made by an independent
executor in compliance with this section.
(b) Enforcement of Demand. Should the independent executor not comply
with a demand for an accounting authorized by this section within sixty
days after receipt of the demand, the person making the demand may compel
compliance by an action in the county court, as that term is defined by
Section 3 of this code. After a hearing, the court shall enter an order
requiring the accounting to be made at such time as it deems proper under
the circumstances.
(c) Subsequent Demands. After an initial accounting has been given by
an independent executor, any person interested in an estate may demand
subsequent periodic accountings at intervals of not less than twelve
months, and such subsequent demands may be enforced in the same manner as
an initial demand.
(d) Remedies Cumulative. The right to an accounting accorded by this
section is cumulative of any other remedies which persons interested in
an estate may have against the independent executor thereof.
