In Estate of Morris, 577 S.W.2d 748 (Tex. Civ. App. -- Amarillo 1979, writ ref'd n.r.e.), the testatrix died April 1, 1975.
She had executed a 1965 will leaving her property to her surviving husband, the named independent executor, who offered the will for probate, and on April 29, 1975, an order was entered admitting the 1965 will to probate. Id.
Two years and five months later, the testatrix's daughter filed an application for probate of a 1968 will that contained a clause revoking all prior wills. Id.
In response, the executor of the 1965 will argued that the two-year statute of limitations for will contests barred the probate of the 1968 will. Id.
However, the Amarillo Court of Civil Appeals found the daughter's action was not a direct attack on the 1965 will as the later will's revocation clause automatically revoked the prior will. Id. at 752.
Applying settled law, the court reasoned that the timely application for probate of a subsequent will containing a revocation clause within four years from the death of the testator is neither a contest of the validity nor barred by the probate of an earlier will "because the probate of the last will, revoking all others, has the incidental effect of revoking the former probate, whether there is any pleading to that effect or not." Id.
Therefore, the court reasoned that the 1968 will was not foreclosed by the two-year statute of limitations for will contests. Id.