Rule 202 Probate Depositions Exceed Court’s Power | In re Purkey (2026)

In Re Richard Earl Purkey Jr. and Ashlyn Purkey Jordan, 09-25-00441-CV, June 04, 2026.

On appeal from 1st District Court of Newton County, Texas

Synopsis

Texas Rule of Civil Procedure 202 does not authorize a district court to order pre-suit depositions to investigate claims that belong within a statutory probate court’s exclusive jurisdiction. In In re Purkey, the Beaumont Court of Appeals held that anticipated will-contest, probate-set-aside, and trust disputes incident to an estate must be pursued in the probate forum designated by the Estates Code, not through a standalone Rule 202 proceeding in district court.

Relevance to Family Law

For Texas family law litigators, In re Purkey is a jurisdiction case disguised as a discovery case, and that is why it matters. Divorce, SAPCR, enforcement, and post-decree property litigation frequently intersect with probate, trusts, beneficiary designations, and inherited or expectancy-based assets. When a family-law dispute turns on a decedent’s estate plan, a trust amendment, a fiduciary appointment, or ownership rights tied to an estate, counsel cannot use Rule 202 in a separate district-court vehicle to probe matters committed to probate jurisdiction. The opinion is a reminder to identify the true gravamen of the dispute early: if the relief sought would effectively develop a will contest, challenge trust administration incident to an estate, or test the validity of testamentary documents, the forum question comes first. In practical family-law terms, that affects characterization fights, standing disputes, reimbursement theories, claims involving inherited business interests, and discovery strategies built around anticipated parallel probate litigation.

Case Summary

Fact Summary

The Rule 202 petitioner, Matthew Spence, sought pre-suit depositions of Richard Earl Purkey Jr., as trustee, and Ashlyn Purkey Jordan, as executor, to investigate possible claims arising from the 2024 will and related amended trust of Fredna Sue Purkey. According to the petition and supplement, Spence contended he was a beneficiary under prior testamentary instruments, suspected lack of capacity and undue influence surrounding the 2024 estate-planning documents, and wanted sworn testimony concerning Fredna Purkey’s condition, the execution of the 2024 will and amended trust, and production of the amended trust itself.

The factual context mattered because the requested discovery was not framed around preserving testimony in danger of being lost. Instead, the petition expressly sought to investigate whether Spence had grounds to object to probate, set aside probate, and challenge trust-related actions tied to the decedent’s estate plan. The record also reflected disputes over trust disclosures, no-contest clauses, and a separate Jefferson County lawsuit involving an allegedly unpaid debt that affected trust funding and beneficiary interests. Stacy Spence later intervened and similarly alleged concerns about Fredna Purkey’s capacity and the legitimacy of the 2024 changes.

Purkey and Jordan objected, arguing among other things that Rule 202 was being used as an improper end-run around the proper probate forum. The trial court nevertheless granted the Rule 202 relief, and the relators sought mandamus. The court of appeals stayed the depositions and ultimately conditionally granted mandamus relief.

Issues Decided

• Whether Texas Rule of Civil Procedure 202 permits pre-suit depositions to investigate claims that fall within a statutory probate court’s exclusive jurisdiction.
• Whether a district court abuses its discretion by authorizing Rule 202 depositions when the anticipated claims are a will contest, an application to set aside probate, or trust disputes incident to an estate.
• Whether mandamus is an appropriate remedy to correct an order compelling Rule 202 depositions in a court lacking power to authorize that pre-suit discovery.

Rules Applied

Rule 202 permits pre-suit depositions in limited circumstances, including to perpetuate or obtain testimony for use in an anticipated suit or to investigate a potential claim or suit. But Rule 202 is not an independent grant of subject-matter power that allows one court to supervise pre-suit discovery into claims committed by statute to another court’s exclusive jurisdiction. As with all pre-suit deposition practice, the rule remains constrained by jurisdictional limits and by the requirement that the petition fit within the narrow purposes the rule was designed to serve.

The court’s analysis turned on the Estates Code’s allocation of probate matters to the proper probate forum. When anticipated claims consist of a will contest, an effort to set aside probate, or trust disputes incident to an estate, those matters are governed by statutory probate jurisdiction. A district court cannot use Rule 202 to create a parallel discovery proceeding that effectively invades that assigned probate sphere.

The mandamus framework also mattered. A trial court abuses its discretion when it orders discovery beyond its legal authority, and Rule 202 orders commonly warrant mandamus review because the harm from improper pre-suit depositions cannot be fully cured on ordinary appeal. Once the depositions occur, the jurisdictional error and attendant burden cannot be unwound in any meaningful way.

Application

The court focused less on the labels used in the petition and more on the substance of what the petitioner was trying to accomplish. Although Spence styled the case as a Rule 202 investigation and argued that he needed testimony before filing suit—both to evaluate his claims and to avoid triggering no-contest clauses—the underlying target of the requested discovery was plain. He sought to probe the decedent’s mental capacity, possible undue influence, the circumstances surrounding execution of the 2024 will and amended trust, and the operation of the trust as beneficiary of the estate. Those are not free-floating civil controversies; they are classic probate and estate-related disputes.

That characterization drove the jurisdictional result. The appellate court treated the anticipated claims as falling within the statutory probate court’s exclusive authority because they concerned an objection to probate, an application to set aside probate, and trust disputes incident to the estate. From that premise, the district court’s Rule 202 order could not stand. The district court was not simply managing ancillary discovery; it was authorizing discovery designed to develop claims belonging in another forum. Rule 202 could not be used to bootstrap an investigative proceeding where the contemplated merits litigation would lie exclusively in probate court.

The court’s reasoning also rejected the practical justifications offered by the petitioner. The desire to obtain the amended trust before suit, the concern about no-contest clauses, and the argument that a few hours of depositions would impose only minimal burden did not solve the threshold problem. Jurisdiction is not overcome by efficiency arguments or strategic pleading. Once the court determined the anticipated claims were probate matters, the district court lacked authority to use Rule 202 as a pre-suit investigative device.

Holding

The court held that Rule 202 may not be used to investigate or develop claims that fall within a statutory probate court’s exclusive jurisdiction. Where the anticipated claims are directed at the validity of a will, the propriety of probate, or trust matters incident to an estate, the proper forum is the probate court designated by the Estates Code.

The court further held that the district court abused its discretion by authorizing the requested depositions. Because the Rule 202 proceeding sought discovery into claims committed to probate jurisdiction, the order exceeded the district court’s power.

The court also concluded that mandamus relief was appropriate. Improper Rule 202 discovery presents the sort of irreparable jurisdictional and procedural harm that cannot be adequately remedied by appeal after the depositions have already occurred. The writ was therefore conditionally granted.

Practical Application

Family lawyers should read In re Purkey as a forum-discipline decision with immediate consequences for discovery planning. In many divorce and post-divorce cases, one side wants early testimony about a parent’s estate plan, a trust amendment, a deceased relative’s intent, or a fiduciary’s handling of assets that may affect the marital estate. This case warns against trying to secure that discovery through a separate Rule 202 action in district court when the anticipated merits dispute is actually probate in nature.

Several recurring family-law scenarios illustrate the point:

• In a divorce involving expected inheritance proceeds, a spouse may want pre-suit testimony about a recent will amendment that cut off the other spouse’s family line. If the contemplated challenge is really a will contest or trust dispute incident to an estate, Purkey says the fight belongs in probate court.
• In a property-characterization dispute, a party may try to investigate whether trust distributions were validly restructured before or during marriage. If the requested testimony would functionally challenge trust administration tied to a decedent’s estate, the family court practitioner must assess probate jurisdiction before pursuing discovery.
• In post-decree enforcement or turnover litigation, counsel may suspect that estate or trust changes were orchestrated to defeat support or property obligations. Even then, Rule 202 cannot be used in a separate district-court proceeding to investigate probate claims that must be brought in the designated probate forum.
• In custody litigation, grandparents or other relatives sometimes rely on estate-planning instruments or fiduciary designations as part of standing or conservatorship strategy. If counsel needs to challenge the underlying testamentary instruments, Purkey indicates that probate procedure—not a standalone Rule 202 petition in district court—is the correct path.

The strategic lesson is straightforward: before filing any pre-suit deposition petition, identify the claim you are actually trying to build. If success would require adjudicating the validity of a will, undoing probate, determining rights under a trust incident to an estate, or policing fiduciary acts within probate jurisdiction, start in the probate court. A Rule 202 petition filed elsewhere may do little more than educate the other side and invite mandamus.

Checklists

Evaluate the Real Forum Before Filing Rule 202

• Identify the actual contemplated causes of action, not just the discovery objective.
• Ask whether the anticipated claims include a will contest, an application to set aside probate, or trust disputes incident to an estate.
• Review the Estates Code jurisdictional provisions before drafting any Rule 202 petition.
• Determine whether a statutory probate court has exclusive jurisdiction over the contemplated dispute.
• Confirm that the court in which Rule 202 relief is sought has power over the underlying anticipated controversy.

Screen Family-Law Cases for Probate Overlap

• Determine whether any alleged asset is tied to a decedent’s estate, trust, payable-on-death designation, or fiduciary administration.
• Distinguish between ordinary marital-property discovery and discovery aimed at attacking testamentary instruments.
• Assess whether the requested testimony would require proof of capacity, undue influence, execution formalities, or fiduciary conduct incident to an estate.
• Flag inherited-business disputes where estate administration affects valuation, tracing, or ownership.
• Consider whether a family-law objective depends on first obtaining probate relief elsewhere.

Build a Rule 202 Petition That Can Survive Challenge

• Explain precisely whether the deposition is for perpetuation of testimony or investigation of a potential claim.
• Tie the requested discovery to a claim that falls within the court’s jurisdiction.
• Develop evidence addressing Rule 202’s required findings, including benefit versus burden.
• Avoid using Rule 202 as a substitute for merits discovery that belongs in a pending or imminently filed case.
• Be prepared to show why the information cannot be obtained through a properly filed action in the correct forum.

Object to an Improper Rule 202 Petition

• Challenge the court’s authority to authorize discovery into claims assigned to another court’s exclusive jurisdiction.
• Attack any mismatch between the requested discovery and the actual anticipated causes of action.
• Emphasize that Rule 202 is procedural and does not expand subject-matter jurisdiction.
• Preserve objections that the petition seeks claim-development rather than legitimate testimony preservation.
• Seek mandamus promptly if the trial court grants the petition despite the jurisdictional defect.

Protect Your Family-Law Client From a Parallel Probate Discovery Maneuver

• Monitor whether the opposing party is attempting to use a district-court filing to investigate probate-centered claims.
• Coordinate with probate counsel early if estate or trust issues may affect the family-law case.
• Consider whether intervention, abatement, or a jurisdictional challenge is necessary to keep disputes in the proper forum.
• Advise clients about the risks of no-contest clauses, but do not assume those risks justify an otherwise improper Rule 202 proceeding.
• Develop a unified strategy for discovery sequencing across family, probate, and related commercial litigation.

Citation

In re Richard Earl Purkey Jr. and Ashlyn Purkey Jordan, No. 09-25-00441-CV, ___ S.W.3d ___ (Tex. App.—Beaumont June 4, 2026, orig. proceeding).

Full Opinion

Read the full opinion here

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