Death of a Claim: How Procedural Defaults and Unverified Expert Reports Kill Crossover Inheritance and Paternity Litigations
Memorandum Opinion by Justice Miskel, 05-24-00157-CV, February 06, 2026.
Synopsis
The Dallas Court of Appeals affirmed the trial court’s judgment admitting a will to probate and dismissing a contest where the contestant failed to comply with a mandatory order to post security for costs and failed to produce admissible expert evidence by court-ordered deadlines. The ruling confirms that a contestant’s failure to bridge the gap between mere allegations of forgery and the production of competent, verified evidence justifies a trial court’s decision to proceed to a final prove-up.
Relevance to Family Law
For family law practitioners, this case serves as a reminder of the procedural rigors required when paternity or heirship claims intersect with estate litigation. When a client seeks to intervene in a probate matter claiming to be an omitted biological child (a “crossover” issue often involving paternity proofs), the mere assertion of a biological link or a forged testamentary instrument is insufficient to maintain standing or survive pretrial dismissal. This opinion highlights that procedural defaults—specifically the failure to post security for costs under the Texas Estates Code and the reliance on unverified expert reports—can effectively terminate a client’s claim to separate property inheritances before they ever reach a jury.
Case Summary
Fact Summary
Lake Zack Hughes executed a will in 2007 that explicitly named one child, Carolyn, and “exclude[d] and den[ied] all other children.” Following Lake’s death in 2020, Carolyn applied to probate the will. Thoyze Baker Hughes filed a contest, asserting he was Lake’s biological son born outside of marriage and was entitled to a share of the estate. The litigation faced several procedural hurdles, including the recusal of the initial probate judge who realized she had likely drafted the will in private practice.
Once reassigned to Probate Court No. 3, the court grew concerned about the mounting costs of litigation against the estate. The court ordered Thoyze to post $5,600 as security for costs pursuant to the Texas Estates Code. Additionally, the court set strict deadlines for the exchange of witness lists and expert designations. Thoyze, eventually proceeding pro se after his counsel withdrew, failed to post the security deposit and relied solely on a handwriting expert’s report that was notarized but lacked the requisite declaration under penalty of perjury. At a pretrial hearing, Thoyze admitted he had no other “credible” evidence. Consequently, the trial court proceeded to a final prove-up in Thoyze’s absence, admitted the will, and appointed Carolyn as executrix.
Issues Decided
The Court of Appeals addressed whether the probate court erred in admitting the will to probate and issuing letters testamentary despite Thoyze’s pending contest. Specifically, the court reviewed whether the trial court’s enforcement of security-for-cost orders and pretrial evidentiary deadlines constituted an abuse of discretion.
Rules Applied
The court applied Texas Estates Code § 53.104, which allows a probate court to require a party to give security for the probable costs of a proceeding. It also relied upon the Texas Rules of Civil Procedure regarding scheduling orders and the Texas Rules of Evidence concerning the admissibility of expert reports. Crucially, the court applied the standard that an expert report must be verified or contain an unsworn declaration under Texas Civil Practice and Remedies Code § 132.001 to constitute competent summary judgment or pretrial evidence.
Application
The court’s analysis centered on the intersection of the trial court’s inherent authority to manage its docket and the specific requirements of the Estates Code. The trial court properly exercised its discretion by requiring a security deposit, given the weakness of the contestant’s claims and the potential for the litigation to deplete estate assets. Thoyze’s failure to meet this financial requirement was the first fatal blow.
The second blow was evidentiary. The court noted that while Thoyze had filed a handwriting expert’s report, the document was not in admissible form because it lacked a declaration that the statements were made under penalty of perjury. Furthermore, Thoyze failed to comply with the scheduling order’s mandate to exchange witness and exhibit lists by the November 10 deadline. Because Thoyze conceded he had no other evidence to present, the trial court was not required to hold a full-scale contested trial on the merits and properly moved to a final prove-up.
Holding
The Court of Appeals held that the trial court did not err in admitting the will to probate. The court determined that the contestant’s failure to post court-ordered security for costs under Texas Estates Code § 53.104 provided sufficient grounds for the trial court to proceed.
The court further held that the exclusion of the contestant’s evidence was proper because the expert report was unverified and the contestant failed to comply with the pretrial scheduling order. As a result, Thoyze failed to raise a genuine issue of material fact regarding the will’s validity, and the trial court’s judgment was affirmed.
Practical Application
Practitioners must treat probate scheduling orders with the same deference as those in high-stakes family litigation. If you are representing a party in a crossover paternity/inheritance dispute, ensure that any “expert” evidence—particularly handwriting analysis—is not merely notarized but contains the specific “penalty of perjury” language required by Section 132.001 of the Civil Practice and Remedies Code. Furthermore, be prepared for “Security for Costs” motions. In probate court, these are often used as a strategic tool to weed out “weak” claims from alleged heirs. If your client cannot post the security, you must be prepared to demonstrate indigency or face immediate dismissal.
Checklists
Validating Expert Evidence
- Ensure the report is accompanied by a CV demonstrating the expert’s specific qualifications in document examination.
- Verify that the report contains a declaration under penalty of perjury pursuant to Tex. Civ. Prac. & Rem. Code § 132.001.
- Confirm that the expert has compared the disputed signature to “known” signatures that are themselves admissible.
- File the expert designation and report strictly within the windows provided by the Rule 166 scheduling order.
Managing Security for Costs
- Monitor the docket for any motion for security for costs under Texas Estates Code § 53.104.
- Advise clients early that they may be required to “pay to play” by depositing estimated attorney’s fees into the court registry.
- If the client is unable to pay, immediately file a Statement of Inability to Afford Payment of Court Costs to avoid procedural default.
Procedural Compliance
- Obtain a signed scheduling order and calendar all exchange deadlines for witness lists and exhibits.
- Do not rely on “status conferences” to extend deadlines; move for a formal continuance if expert reports are not yet verified.
- Remind pro se clients (or those intending to go pro se) that they will be held to the same standards as licensed counsel regarding the Rules of Evidence.
Citation
Estate of Lake Zack Hughes, No. 05-24-00157-CV, 2026 WL [Pending] (Tex. App.—Dallas Feb. 6, 2026, no pet. h.).
Full Opinion
Family Law Crossover
This ruling can be used in a Texas divorce where a spouse claims a significant inheritance as separate property. If the other spouse attempts to challenge the validity of the deceased’s will (perhaps to argue that the property should have passed via intestacy to an heir whose interest they can more easily reach), the proponent of the separate property can use Estate of Hughes to shut down the challenge. By moving for security for costs and aggressively challenging the admissibility of unverified expert reports, the proponent can secure a “final prove-up” that confirms the testamentary gift, effectively insulating the separate property characterization from collateral attack during the property division. This case proves that procedural technicalities are the most efficient killers of crossover inheritance claims.
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