In In re Estate of Morris, 577 S.W.2d 748 (Tex. App.--Amarillo 1979, writ ref'd n.r.e.), the decedent's first will devised all of her property to her surviving husband. Id. at 751.
This will was admitted to probate. Id. A second will, executed three years later, left only $ 1.00 to her surviving husband, and the remaining property in her estate to their two children. Id.
Soon after the decedent's funeral, the decedent's two children had agreed to destroy the second will because it would upset their father. Id. at 751. Later, the decedent's daughter applied to probate this second will. Id.
Addressing this situation in terms of the family settlement doctrine, the Amarillo court held that the two children had agreed to not probate the second will but had failed to agree to an alternate plan of distribution and that, therefore, the agreement was ineffective, as a family settlement agreement, to deny probate of the second will. Id. at 756.
The court emphasized that an agreement not to probate a will must be accompanied by an agreement as to the distribution of the property. Id.
The court held that the children's knowledge of the 1965 will was insufficient to constitute an agreement between the two of them as to the distribution of the property. Id.