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The Writ of Mandamus: What It Is And Why Parties Sometimes Get One


The writ of mandamus is a judicial mandate issued by a higher court to force a lower court or government official to perform their duties. This is not an order issued by the Supreme Court, but rather can be issued by any other court that has jurisdiction over the lower court in question. Sometimes, parties will receive the writ of mandamus when they are at risk of losing substantial rights, such as if they have no adequate remedy through appeal.

Legal Case

Hamilton v. Gregory, 482 S.W.2d 287 (Tex. App. – Houston [1st Dist.] 1972, no writ)


Motion in Limine: a request that certain evidence not be included or offered within a trial.

Writ of Mandamus: an order for a governmental entity to fulfill their lawful obligations.

Facts & Procedural History: Filed Petition Action and Appeal

Rayburn M. Hamilton (Relator) filed an application to probate the will of Esther M. Mowrer (Decedent) in probate court. Depelchin Faith Home (Home) filed a contest, alleging that: (1) it was a beneficiary as stated within a prior lost will, and (2) that this new will was invalid. Relator challenged Home’s beneficiary right by stating that Home did not meet the requisite to be an interested person under the Texas Probate Code. Relator asked for a separate trial in limine to address whether Home had the authority to contest the will. Home filed a separate application to probate a will, and the two cases were joined for trial.

The probate court denied Relator’s motion for the separate trial in limine, so Relator filed for a writ of mandamus within the District Court, which was also denied. The District Court stated it is normal practice that, prior to a person asserting their right to contest the probate of a will, they must prove they are a person who maintains a pecuniary interest that will be adversely affected by the probate of the will. This should be proved through a separate, advance proceeding before trial (in limine).

Relator then appealed to the Court of Appeals, which affirmed the District Court’s refusal to issue a writ of mandamus. The Court of Appeals articulated that the trial court erred in refusing to require the contestants to prove their interest in the estate, but that the Relator has an adequate remedy by appeal (namely that he has absolute right of appeal from the probate court to the district court, where he will receive a trial de novo. If the probate court fails to allow a proper trial in limine on the issue of interest on part of the contestant, the error can be corrected by the district court).

Main Considerations

If requested by a person admitting a will to probate, when must a contestant prove their interest in an estate?

To contest a will, there can be a separate proceeding held in advance of a trial to discuss the merits of whether there is sufficient evidence to show a contestant’s interest in an estate. The contestant must prove that they are a person with a pecuniary interest that will be adversely affected by a will’s probate.

The Takeaway

Hamilton v. Gregory shows that a writ of mandamus will only be issued by a higher court when parties are in jeopardy of losing their substantial rights (such as having no adequate remedy by appeal).

Do you Need to Hire an Experience Probate Attorney in DFW?

There is no one-size-fits-all answer to this question. The best way to determine whether or not you need to hire an experienced probate attorney is to consult with a qualified attorney. They will be able to evaluate your specific situation and advise you on the best course of action. For a FREE probate attorney consultation, call us today at 469-564-3029.

Related Questions

What is the meaning of writ mandamus in law?

The writ of mandamus is a court order that requires a government official to take a specific action. It can be used to compel an official to do something that they are required to do by law, or to stop them from doing something that they are not allowed to do.

The writ of mandamus can be used as a last resort when all other attempts to get the government official to take action have failed. It is important to note that the writ of mandamus is not a tool to be used to force the government to do something that it does not want to do, but rather to ensure that the government is following the law.

Why is the writ of mandamus important?

The writ of mandamus is an important legal tool that can be used to ensure that parties comply with their legal obligations. In some cases, the writ can be used to force a party to take a specific action, such as filing a return or completing a transaction. In other cases, the writ can be used to compel a party to refrain from taking an action that would be illegal or harmful to another party. The writ of mandamus is not always available, but it can be a powerful tool when it is.

What is writ of mandate? Is it extraordinary?

A writ of mandate is a court order that requires a government official or entity to take a specific action, usually to correct an unlawful or unjust situation. The writ is one of the oldest and most powerful tools in the American legal system, and it can be used by individuals or groups to compel government action on a wide range of issues. Writs of mandate are typically used to force government officials to perform their duties when they have unlawfully refused to do so. For example, a writ of mandate could be used to compel a government agency to issue a building permit that it has unlawfully withheld. Or, a writ of mandate could be used to force the government to provide adequate funding for a public school system. In some cases, writs of mandate are also used to protect the constitutional rights of citizens. For example, a writ of mandate could be used to compel the government to allow protesters to assemble peacefully, or to ensure that voters are not disenfranchised. While the writ of mandate is an incredibly powerful tool, it is important to remember that it is not always successful. In some cases, the government may simply ignore the writ and continue with its illegal actions.

When to use writ of mandamus?

There are a few different situations when a writ of mandamus may be used. One example is if a lower court has made a decision that is not in line with what the law says. In this case, the party who feels aggrieved by the decision can ask for a writ of mandamus from a higher court.

Another situation where a writ of mandamus may be used is if a government official or agency has refused to do something that they are legally required to do. For instance, if the IRS has unlawfully withheld tax refunds, a writ of mandamus can be used to force them to release the funds.

Lastly, a writ of mandamus may also be used if a private individual or entity has failed to perform a duty that they have agreed to do. For example, if someone has agreed to fix your roof but then backs out, you could get a writ of mandamus to compel them to uphold their end of the agreement.

What does mandamus mean in Latin?

“Mandamus” means “we command.” So, you can think of mandamus as a court order commanding a government official to perform a particular act. It is issued by a court, to the government agency itself, and not to the official personally. In other words, the official generally does not have to respond and has no recourse for appeal.

The Texas Supreme Court has said that mandamus is a “drastic and extraordinary remedy.” It is available only when there is no other adequate remedy, such as a suit for declaratory relief or writ of quo warranto. In other words, it’s pretty tough to get a mandamus order.

We often consider mandamus requests in cases of improperly denied property tax exemptions, illegally delinquent taxes, and illegal taxation. Property owners file these requests because they have reached the end of their rope with the taxing authority – they cannot resolve their problems with the agency and they feel something must be done.

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