Texas Rule of Civil Procedure 202 provides a limited method to obtain discovery of facts before actually filing a suit.It is a useful tool when a litigant suspects they have a valid claim, but wish to investigate further before actually filing suit.

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The Fort Worth Court of Appeals decision in In Re Meeker involves two important issues for probate litigators: entitlement to pre-suit discovery and estoppel based on acceptance of benefits.

Both issues arise fairly regularly in will contests.

The theory is designed to prevent one from embracing a beneficial interest devised to him under a will, and then later asserting a challenge of the will inconsistent with the acceptance of benefits.

However, there are other decisions holding that estoppel does not bar a beneficiary from contesting a will if they stand to gain even more from a successful contest and they were going to obtain the already received benefits anyway.

The son made that very argument, that the filing of a will contest does not mean that he was taking a position inconsistent with the benefits he had already received.

In , a son of the decedent filed a Rule 202 petition for pre-suit discovery in aid of a potential will contest. The executor challenged that ruling through a mandamus appeal.

He sought to investigate whether his father had sufficient capacity to execute the will at issue. Among other arguments, the executor contended that the son had already accepted benefits under the will and therefore had no standing to contest the will.