Joy Anderson Hopkins v. Michael Jay Hopkins

In this proceeding to probate a will, the contestants moved for summary judgment on the ground that the signatures of the attesting witnesses do not appear on the will, but only on a self-proving affidavit attached to the will. Applying the rule announced in Boren v. Boren, 402 S.W.2d 728 (Tex. 1966), that such a will is invalid, the probate court granted the motion and denied probate. The proponent has appealed, and now the contestants as well as the proponent urge us to reverse and render judgment in accordance with an agreement of the parties that the will should be admitted to probate. The proponent also contends that the Boren rule should not be applied in the circumstances of this case. We hold that an invalid will cannot properly be probated by agreement and that this will is invalid under Boren. Accordingly, we affirm. Agreement to Probate Will Although we are authorized under rule 387a(a)(1) of the Texas Rules of Civil Procedure to render judgment pursuant to an agreement of the parties, and we usually accept such agreements, we cannot do so in this case without first determining whether a court can properly admit a will to probate by agreement of the parties when it has not been proved to be a valid will. We recognize that a family settlement by which all heirs and beneficiaries agree not to probate a will and let the property pass by descent is valid and enforceable. Salmon v. Salmon, 395 S.W.2d 29, 32 (Tex. 1965); Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54, 56 (1958). Such an agreement not to probate a will, however, is invalid unless accompanied by an agreement for distribution of the property. Estate of Morris, 577 S.W.2d 748, 756 (Tex. Civ. App.--Amarillo 1979, writ ref'd n.r.e.). No authority has been cited, and we have found none, upholding an agreement to probate a will without proof of execution as required by the Probate Code.