NUMBER 13-16-00211-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE ESTATE OF ALBERTO SIMO

A/K/A ALBERT SIMO, DECEASED

On appeal from the 197th District Court

of Willacy County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Contreras and Hinojosa

Memorandum Opinion by Chief Justice Valdez

Appellant, Oscar Simo Jr., appeals from the trial court’s order probating Albert 

Simo’s will. By three issues, appellant contends that appellee Annabell Alegria lacked 

standing and capacity to file an action on Narcy Simo’s behalf to probate Albert’s will as 

a muniment of title and that the statute of limitations bars appellee’s action.1 We affirm.

 

1 We have reorganized appellant’s issues for purposes of our analysis.
2

I. BACKGROUND

Albert and Narcy were married. Narcy had one child from a previous marriage, 

Melba Nora Williams, and Albert and Narcy had two sons, Oscar Simo and George A. 

Simo.2 In 2008, Albert and Narcy executed the “George A. Simo Trust Agreement,” 

wherein everything they owned was transferred to the trust and held for the sole benefit 

of George, and George was appointed as the sole trustee. In 2009, George was 

appointed the guardian of Albert and Narcy on the basis that they were incapacitated.

Appellant filed suit in a separate cause to have George removed as Albert and 

Narcy’s guardian of the estate.3 Albert died in 2010 during the pendency of the 

guardianship proceeding. In 2014, in the guardianship proceeding, the trial court 

appointed appellee, an attorney, as Narcy’s guardian ad litem. In 2015, in the 

guardianship proceeding, the trial court declared the trust void, and ordered that “all 

property constituting the res of the George A. Simo Trust . . . to revert back to the Estates 

of Albert Simo and Narcy Simo, respectively.” According to appellee, in the guardianship 

proceeding, the trial court then removed George as the guardian of the estate of Narcy. 

At this point, appellee asked the trial court for permission to file an action on behalf of 

Narcy to probate Albert’s will as a muniment of title. In that proceeding, appellant filed a 

plea in abatement and, in the alternative, a motion to dismiss complaining that the statute 

of limitations had expired and that appellee lacked standing and capacity to file the suit 

on behalf of Narcy. After hearing evidence, the trial court admitted Albert’s will to probate 

as muniment of title. See In re Estate of Kurtz, 54 S.W.3d 353, 356 (Tex. App. —Waco

 

2 Appellant’s father, Oscar Simo, is deceased.

3

It is not clear from our review of the record when appellant filed the guardianship proceeding. 

However, according to the appellant’s brief, he filed the cause prior to Albert’s death.
3

2001, no pet.) (explaining that a final order admitting a will to probate as a muniment of 

title is appealable). This appeal followed.

II. STANDING

By his first issue, appellant contends that appellee lacked standing to file the cause 

of action on behalf of Narcy to probate Albert’s will.

A party’s standing to pursue a cause of action is a question of law. 

Consequently, we review the trial court’s actions de novo. We review the 

trial court’s factual findings for legal and factual sufficiency and review the 

trial court’s legal conclusions de novo.

Rupert v. McCurdy, 141 S.W.3d 334, 338–39 (Tex. App. —Dallas 2004, no pet.) (internal 

citations omitted).

In Texas, the standing doctrine requires that there be (1) “a real 

controversy between the parties,” that (2) “will be actually determined by the 

judicial declaration sought.” Implicit in these requirements is that litigants 

are “properly situated to be entitled to [a] judicial determination.” Without 

standing, a court lacks subject matter jurisdiction to hear the case. Thus, 

the issue of standing may be raised for the first time on appeal.

In addition to standing, a plaintiff must have the capacity to pursue a 

claim. For example, minors and incompetents are considered to be under 

a legal disability and are therefore unable to sue or be sued in their 

individual capacities; such persons are required to appear in court through 

a legal guardian, a “next friend,” or a guardian ad litem. . . . Although a 

minor, incompetent, or estate may have suffered an injury and thus have a 

justiciable interest in the controversy, these parties lack the legal authority 

to sue; the law therefore grants another party the capacity to sue on their 

behalf.

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (internal citations 

omitted).

Narcy has been adjudicated incapacitated, which is a finding not at issue in this 

appeal. Therefore, Narcy is under a legal disability, and she is unable to sue in her 

individual capacity. See id. Therefore, Narcy cannot sue even if she has a justiciable 

interest in the probate proceeding. See id. Narcy must appear in court through a legal 
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guardian, a “next friend,” or a guardian ad litem. See id. Accordingly, the law grants 

another party the capacity to sue on Narcy’s behalf if Narcy has a justiciable interest in 

the outcome. See id.

It is undisputed that Albert bequeathed his entire estate to Narcy in his will. 

Accordingly, we conclude that Narcy has a justiciable interest in the outcome of this 

probate proceeding, and because she is an incapacitated person, the probate proceeding 

had to be brought by her representative on her behalf. See id. (concluding that although 

suit had been brought by the decedent’s representative because the decedent’s estate 

lacked capacity, the decedent’s estate had a justiciable interest in the controversy 

sufficient to confer standing); see also TEX. EST. CODE ANN. § 256.051 (West, Westlaw 

through 2017 R.S.) (establishing that an interested person may file an application with the 

court for an order admitting a will to probate); id. 22.018 (West, Westlaw through 2017 

R.S.) (defining interested person as a devisee and as “anyone interested in the welfare 

of an incapacitated person”). We overrule appellant’s first issue.

III. STATUTE OF LIMITATIONS

By his second issue, appellant contends that the trial court erred in admitting the 

will to probate because the four-year statute of limitations had expired. See TEX. ESTATES 

CODE ANN. § 256.003(a) (West, Westlaw through 2017 R.S.). It is undisputed that the 

trial court admitted the will to probate more than four years after Albert’s death.

Although appellant is correct that generally a will may not be admitted to probate 

after the fourth anniversary of the testator’s death, there is an exception. In re Estate of 

Allen, 407 S.W.3d 335, 339 (Tex. App.—Eastland 2013, no pet.). If the party seeking to 

probate a will can show that he or she was not in default in presenting the will within the 

limitations period, the will may be probated. Id. Generally, it is a fact issue whether the 
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proponent of a will is in default. Id. “The case law in Texas is quite liberal in permitting a 

will to be offered as a muniment of title after the statute of limitations has expired upon 

the showing of an excuse by the proponent for the failure to offer the will earlier.” Id. And, 

“‘[t]he tendency of our courts has been from [their] earliest decisions to permit wills to be 

filed after the four-year period, where there is any evidence of a probative force which 

would excuse the failure to offer the will sooner.’” Id. (quoting Armstrong v. Carter, 291 

S.W. 626, 627 (Tex. Civ. App.—Waco 1927, no writ)).

Appellate courts in Texas have determined that a party is not in default if that 

person was unaware of the necessity to admit the will to probate. See Chovanec v. 

Chovanec, 881 S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, no writ) (finding 

that the evidence raised a genuine issue of material fact as to whether the decedent’s 

husband was in default for waiting thirteen years after his wife’s death to probate the will 

because the husband was not aware that it was necessary because he thought he had 

inherited everything from his wife); Kamoos v. Woodward, 570 S.W.2d 6, 8–9 (Tex. Civ. 

App.—San Antonio 1978, writ ref’d n.r.e.) (affirming the trial court’s finding that the wife 

was not in default after waiting five years to probate her husband’s will because (1) she 

did not believe it was necessary to offer the will for probate due to the nature of the 

property and (2) she filed the application to probate the will as soon as she became aware 

that her husband had inherited a royalty interest). Here, George testified that he had not 

admitted Albert’s will to probate while he served as Narcy’ guardian of Narcy’s estate 

because all of Albert’s property had been transferred to the trust, and he was not aware 

that it was necessary to probate the will if the trust existed.

In addition, appellee testified that as she understood it, there was no need to 

probate Albert’s will when he passed away because he had transferred all of his assets
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to the trust. Appellee stated that, if all assets are in trust, “there is no reason to probate 

the will” and that probating the will would have been unnecessary. She testified that as 

soon as the trial court set aside the trust, she sought permission to probate the will and 

then filed the application to admit Albert’s will to probate. Because Narcy is incapacitated, 

she could only file an application to probate the will through a representative. See Austin 

Nursing Ctr., Inc, 171 S.W.3d at 849. Narcy’s former representative, George, testified 

that he was unaware that he needed to probate the will while the trust existed, and Narcy’s 

new representative, appellee, testified that once the trial court set aside the trust, she filed 

the application to probate the will. Viewing the evidence in the light most favorable to the 

challenged finding, crediting any favorable evidence if a reasonable fact finder could, and 

disregarding any contrary evidence unless a reasonable fact finder could not, we 

conclude that some evidence of a probative force exists which would excuse Narcy’s 

failure to offer the will sooner. In re Estate of Allen, 407 S.W.3d at 338, 342 (setting out 

the proper standard of review and stating that whether a proponent of a will is in default 

is a question of fact). We overrule appellant’s second issue.

IV. CAPACITY

By his third issue, appellant contends that appellee lacked capacity to file the 

probate matter on behalf of Narcy. Specifically, appellant argues that because George 

served as Narcy’s guardian of the estate, he had the exclusive right to file suit on her 

behalf. In the alternative, appellant argues that the receiver in the guardianship 

proceeding should have filed this probate proceeding.

Generally, when a guardian of the estate has been appointed, only the guardian 

of the ward’s estate may bring a lawsuit on behalf of the ward. In re Archer, 203 S.W.3d 

16, 21 (Tex. App.—San Antonio 2006, pet. denied). However, appellee testified that, at 
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the time she filed the probate action, George had been removed as Narcy’s guardian of 

the estate. As the finder of fact, the trial court could have believed appellee’s testimony 

that, when she sought permission to file the probate proceeding on behalf of Narcy, 

George had been removed as Narcy’s guardian of the estate. Appellee also testified that 

the trial court had not yet appointed a receiver in the guardianship proceeding. Appellant 

did not provide any contrary evidence showing that a receiver had been appointed. In re 

Estate of Allen, 407 S.W.3d at 338‒39 (explaining that the evidence is legally insufficient 

if the evidence conclusively establishes the opposite of a vital fact). Thus, the trial court 

could have believed appellee’s testimony that a receiver had not been appointed. We 

overrule appellant’s third issue.

V. CONCLUSION

We affirm the trial court’s judgment.

 /s/ Rogelio Valdez

ROGELIO VALDEZ

Chief Justice

Delivered and filed the

26th day of October, 2017.