In the typical probate and trust litigation case, the ever-rising and substantial cost of going to trial usually has the negative impact of reducing the size of the very estate or trust in which the litigants seek to recover. Therefore, the benefits of being able to resolve probate and trust litigation early and effectively through motions for summary judgment cannot be understated. On the one hand, summary judgment practice in probate and trust litigation can be full of numerous procedural and evidentiary “traps” for the unwary. On the other hand, it can present a “goldmine of opportunities” for the experienced, prepared and informed probate litigator. This article seeks to provide the necessary information to enable the probate litigator effectively to obtain or oppose summary judgments in common types of probate and trust litigation, and in doing so, to maximize the opportunity to obtain favorable settlements.
We start our article by outlining and explaining the key components or concepts found in Texas Rule of Civil Procedure (the “Rules”) 166a. Common traps found in the filing and service deadlines are discussed. In addition, suggested outlines for various types of motions for summary judgment, responses, and replies are discussed to assist the probate litigator in quickly organizing and preparing efforts to obtain or oppose a motion for summary judgment. Burdens of proof are also covered to guide the probate litigator in understanding exactly what must be established or proven to obtain a favorable ruling from the court on various types of motions for summary judgment. A discussion on common evidentiary issues follows to ensure that only competent evidence is before the court but also to enhance arguments for admissibility. The importance of the doctrine of judicial notice in probate proceedings is also emphasized, and the article explains its interplay with judicial admissions.
Next we identify and outline various burden-of-proof rules and evidentiary presumptions to ensure an effective and accurate strike or counter-strike when seeking to obtain or oppose a summary judgment. We will then discuss and highlight the numerous opportunities to attempt to obtain motions for summary judgment in various specific probate and trust settings. Finally, some key concepts when considering the appellate review of summary judgments are considered.
In short, probate litigation often involves purely “legal” issues that, once resolved, can be outcome determinative. Thus, even though a motion for summary judgment might not “fully” resolve the typical probate or trust case, we demonstrate that there are ample opportunities to use motions for summary judgment to obtain key “smaller” rulings that can significantly impact the trajectory of the case (including settlement negotiations and mediation) and the length or complexity of trial.
The full publication by Mark Caldwell, Donovan Campbell, Jr. and J. Brian Thomas is available below/wp-content/uploads/2019/03/Summary-Judgment-2016.pdf