What is the summary of In the Estate of Victoria B. Kubiak, Deceased?

In a probate will contest, the court held that the contestant had “possession, custody, or control” of the decedent’s medical and pharmacy records because Texas statutes gave him a legal right to obtain them from the providers, even though the records were physically held by third parties. The First Court of Appeals analyzed Rule 192.7(b) together with Estates Code sections 55.101 and 55.102 and Occupations Code section 159.003(a)(8), concluding that legal access is enough to create a production duty. The court also found that the contestant waived any contrary objection by not timely asserting lack of control and that pending third-party subpoenas did not excuse nonproduction. It affirmed the trial court’s $7,727 attorney’s-fee sanction for repeated failure to comply with discovery requests and court orders.

Can a Texas probate court sanction a will contestant for failing to produce a decedent’s medical and pharmacy records when the contestant says the records are held by third-party providers?

Yes. Under Texas Rule of Civil Procedure 192.7(b), "possession, custody, or control" includes not only physical possession but also a right to possession equal or superior to the person holding the records. In a will contest where mental or testamentary capacity is at issue, Texas Estates Code §§ 55.101 and 55.102 and Texas Occupations Code § 159.003(a)(8) gave the contestant the right to obtain the decedent’s relevant medical records, so the probate court did not abuse its discretion by compelling production and imposing sanctions for repeated noncompliance.

Do Texas Estates Code sections 55.101 and 55.102 entitle a party in a will contest to obtain the decedent’s medical records relevant to testamentary capacity?

Yes. Texas Estates Code § 55.101 provides that a party to a will contest who relies on the decedent’s mental or testamentary capacity is entitled to production of communications and records relevant to that condition, and § 55.102 requires a provider or custodian to release them upon receipt of a proper subpoena and a file-stamped copy of the proceeding. The court treated those statutes as giving the contestant an equal or superior right to possession for discovery purposes under Rule 192.7(b).

Is a Texas discovery objection waived if a party fails to timely object that requested documents are not within the party’s possession, custody, or control?

Yes. Texas Rule of Civil Procedure 193.2(a) and (e) requires specific, timely objections to written discovery, and objections not stated when due are waived. Because the contestant did not timely object that he lacked possession, custody, or control of the records—and instead objected only that the records could be obtained from a more convenient source—the appellate court held that the no-possession complaint was waived.

Can a Texas trial court award attorney’s fees as a discovery sanction for delay and repeated disobedience of discovery orders?

Yes. Texas Rule of Civil Procedure 215.2(b)(2) and 215.2(b)(8) authorize a court to charge discovery expenses and reasonable attorney’s fees against a disobedient party when failure to comply with discovery requests or orders causes those expenses. The court upheld a $7,727 fee award because the record showed prolonged delay, multiple motions to compel and enforce, and noncompliance with prior court orders.

Does a motion in limine preserve error or bar evidence by itself in a Texas civil trial?

No. In Texas practice, a motion in limine is a preliminary housekeeping order that generally requires counsel to approach the bench before mentioning certain matters, but it does not itself exclude evidence or preserve appellate error. A party must still make a proper trial objection when the evidence is offered to obtain a definitive ruling and preserve any complaint for appeal.

When may a Texas trial court admit testimony from a witness whose disclosure identifies the witness but gives only a minimal description, such as a family relationship?

A trial court may admit the testimony if the disclosure is sufficient under the circumstances or if the opposing party is not unfairly surprised or prejudiced by the witness’s appearance. The opinion treated the challenge to the granddaughter’s testimony as an evidentiary-disclosure complaint and concluded the trial court did not abuse its discretion in allowing the testimony despite the limited description in the disclosure.

Texas Probate Discovery Sanctions: Estate of Kubiak (2026)

Litigation Takeaway

"If a party has a legal right to obtain records, Texas discovery law may treat those records as within that party’s control even when a third party physically holds them. In family-law cases, do not assume subpoenas replace party-production duties, and raise any true lack-of-control objection specifically and on time or risk waiver and sanctions."

In the Estate of Victoria B. Kubiak, Deceased, 01-24-00203-CV, August 11, 2026.

On appeal from Probate Court No. 4, Harris County, Texas

Synopsis

A will contestant had “possession, custody, or control” of the decedent’s medical and pharmacy records because Texas law gave him a legal right to obtain them, even though the records were physically held by third-party providers. The First Court of Appeals held that pending third-party subpoenas did not eliminate that production obligation and affirmed monetary sanctions for repeated failure to comply with discovery requests and court orders.

Relevance to Family Law

This opinion matters well beyond probate. In Texas family law, Rule 192.7(b)’s definition of “possession, custody, or control” regularly governs requests for records that are physically held by third parties but are legally accessible to a party—medical, mental-health, pharmacy, school, employment, financial, or electronically stored records. In divorce, SAPCR, modification, and enforcement litigation, this case strengthens the argument that if a party has a statutory or contractual right to obtain records relevant to the claims or defenses, the party may be compelled to produce them directly, and the existence of subpoenas to the custodians will not necessarily excuse nonproduction or forestall sanctions.

Case Summary

Fact Summary

The dispute arose in a probate contest over the will of Victoria Kubiak, who died in 2021 at age 99. Her daughter, Wanda Noskrent, offered the will for probate. Her grandson, Zachary Kubiak, contested probate, alleging lack of testamentary capacity, undue influence, and fraud. Because mental capacity was central to the contest, Victoria’s medical and pharmacy records became predictably significant discovery.

Zachary’s disclosures identified custodians of records for Dr. James Kendrick and Walgreens, among others, as persons with knowledge of relevant facts. Wanda then served discovery seeking those records. According to the court’s account, Zachary did not timely produce them, prompting an October 2022 motion to compel and a November 2022 order requiring responses within 30 days. When the records still were not produced, Wanda filed a motion to enforce in March 2023 and a second motion to compel in April 2023, resulting in another order requiring compliance within five days and expressly warning of contempt or sanctions.

The matter escalated again in May 2023 with a motion to show cause. At the June 29, 2023 hearing, the probate court heard evidence, including testimony from Dr. Kendrick, who brought records with him, though the court found they were not then in admissible form for that hearing. The trial court determined Wanda was entitled to the requested discovery, rejected death-penalty sanctions, but awarded $7,727 in attorney’s fees as discovery sanctions based on Zachary’s failure to produce the records despite multiple requests and orders.

After trial, the jury found testamentary capacity, found the will valid, and rejected undue influence and fraud. Zachary appealed, including a challenge to the order compelling production of Dr. Kendrick’s and Walgreens’s records and the related sanctions.

Issues Decided

Whether the decedent’s medical and pharmacy records were within the will contestant’s “possession, custody, or control” under Texas Rule of Civil Procedure 192.7(b), even though third-party providers physically held the records.
Whether Estates Code sections 55.101 and 55.102, together with Occupations Code section 159.003(a)(8), gave the contestant a legal right to obtain the records sufficient to satisfy Rule 192.7(b).
Whether the existence of separate subpoenas to the healthcare providers defeated the contestant’s duty to produce the records in response to party discovery.
Whether the trial court abused its discretion in imposing $7,727 in sanctions for noncompliance with discovery requests and prior discovery orders.

Rules Applied

The court’s analysis centered on the interplay between Rule 192.7(b) and the probate-specific access statutes.

Texas Rule of Civil Procedure 192.7(b): “Possession, custody, or control” includes not only physical possession, but also a right to possession equal or superior to the person who physically holds the item.
Texas Estates Code section 55.101: In a will contest or proceeding where a party relies on the decedent’s mental or testamentary capacity before death, a party is entitled to production of communications or records relevant to the decedent’s condition before death.
Texas Estates Code section 55.102: Upon receipt of a subpoena and a file-stamped copy of the qualifying proceeding, the physician, hospital, medical facility, custodian of records, or other person holding the records must release them to the requesting party without further authorization.
Texas Occupations Code section 159.003(a)(8): Physician-patient confidentiality does not apply where the patient’s physical or mental condition is relevant to the execution of a will.
Texas Rule of Civil Procedure 193.2(a), (e): Objections to written discovery must be stated specifically and timely, or they are waived.
Texas Rule of Civil Procedure 215.2(b)(2) and (8): Trial courts may impose discovery sanctions, including reasonable expenses and attorney’s fees caused by a failure to comply.
In re City Info Experts, LLC, No. 01-20-00364-CV, 2020 WL 6435782 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, orig. proceeding) (mem. op.): untimely objections are waived.
Cognata v. Down Hole Injection, Inc., 375 S.W.3d 370 (Tex. App.—Houston [14th Dist.] 2012, pet. denied): attorney’s-fee sanctions may be appropriate for delay and obstruction in discovery.

Application

The First Court of Appeals treated the case as a straightforward Rule 192.7(b) control question informed by substantive access statutes. The key point was that physical possession was not the measure of discovery control. The healthcare providers may have had the records in hand, but Zachary had a legal entitlement to obtain them because he was a party litigating Victoria’s testamentary capacity. Under Estates Code sections 55.101 and 55.102, and in light of Occupations Code section 159.003(a)(8), he could secure those records from the providers without further authorization. That legal right, the court held, constituted possession, custody, or control for discovery purposes.

The court also relied on waiver. When Wanda first requested production, Zachary did not timely object that the records were outside his possession, custody, or control. Instead, he objected only that the records could be obtained from another source that was more convenient, less burdensome, or less expensive. Under Rule 193.2, that meant the “not in my possession or control” objection was not preserved. The appellate court made clear that this alone materially weakened the challenge to the production order.

Just as important, the court rejected the notion that third-party subpoenas displaced party-production duties. The existence of subpoenas to Dr. Kendrick and Walgreens did not negate Zachary’s own equal or superior right to obtain the same records, and therefore did not excuse nonproduction in response to party discovery. In other words, parallel subpoena practice does not collapse Rule 192 obligations where the responding party has an independent legal right to the material.

Against that backdrop, the sanctions order was easy for the court to affirm. The record reflected multiple motions, multiple court orders, extended delay, and continued nonproduction. The probate court chose a measured remedy—attorney’s fees rather than case-ending sanctions—and the court of appeals found no abuse of discretion in requiring Zachary to pay the fees incurred in forcing compliance.

Holding

The court held that a will contestant has possession, custody, or control of a decedent’s relevant medical and pharmacy records when Texas statutes give that contestant a legal right to obtain them. Under Rule 192.7(b), a legal right to possession that is equal or superior to the records custodian’s physical possession is enough.

The court further held that the pendency of third-party subpoenas to the medical providers did not eliminate the contestant’s obligation to produce the records in response to party discovery. A party cannot avoid production merely because the requesting party may also pursue the same documents directly from the custodian.

The court also upheld the trial court’s sanctions award of $7,727 in attorney’s fees. Given the repeated discovery requests, prior orders compelling compliance, and continued failure to produce records within the party’s legal control, the probate court acted within its discretion under Rule 215.

Practical Application

For Texas family lawyers, this case is a useful discovery tool and a cautionary one. In custody litigation, a parent’s therapy, psychiatric, rehabilitation, or pharmacy records may become relevant when conservatorship, possession, impairment, family violence, or parental functioning is in dispute. In divorce cases, employment, payroll, retirement, benefits, bank, and tax records may be held by employers or institutions but still be subject to party production if the responding party has the legal right to obtain them. In property characterization and reimbursement disputes, business records, loan files, account statements, and electronically stored financial data often present the same issue.

The strategic lesson is that “control” is a legal-right inquiry, not merely a possession inquiry. If the opposing party can demand the records from the holder by statute, contract, account access, portal access, written authorization, plan rights, or agency relationship, those materials may fall within Rule 192.7(b). This allows family-law practitioners to frame requests more aggressively and, when necessary, to seek Rule 215 relief without waiting indefinitely on third-party compliance.

The defensive lesson is equally important. If a client truly lacks possession, custody, or control, that objection must be made specifically and timely, with factual support. Boilerplate assertions that the material is available from a “more convenient” source may waive the stronger objection. And once a court signs an order compelling production, practitioners should treat compliance deadlines as real even if subpoenas remain outstanding with the third-party custodian.

A few litigation settings where this ruling may surface in family court include:

SAPCR and modification cases: medical, counseling, drug-treatment, and pharmacy records bearing on best interest, impairment, or parental capacity.
Divorce property cases: pension, employment, compensation, and account records that a spouse can access directly from a plan administrator, employer, or financial institution.
Enforcement and support litigation: payroll and benefits records relevant to income, bonuses, commissions, and insurance availability.
Mental-health or capacity-related disputes: records relevant to execution of mediated settlement agreements, alleged coercion, or competency issues surrounding litigation conduct or agreement formation.
Discovery enforcement hearings: requests for attorney’s-fee sanctions when a party had the legal ability to obtain records but did not produce them after request or order.

Checklists

Evaluate “Control” Before You Respond

Determine whether the requested records are physically held by a third party.
Analyze whether your client has a legal right to obtain them by statute, contract, account ownership, consent authority, portal access, employment rights, or plan rights.
Review whether any confidentiality exception or disclosure statute applies.
Distinguish between actual inability to obtain records and mere inconvenience in obtaining them.
Document the basis for any assertion that the client lacks possession, custody, or control.

Preserve Objections Properly

Serve written objections within the response deadline.
State specifically if the requested material is not within your client’s possession, custody, or control.
Include the factual basis for that objection.
Avoid relying solely on the argument that the requesting party can get the records elsewhere.
Supplement promptly if later developments change the control analysis.

Use This Case to Obtain Records in Family Litigation

Draft requests for production that expressly invoke Rule 192.7(b)’s legal-right concept.
Identify the statutory, contractual, or practical mechanism by which the opposing party can obtain the records.
Tie the requested records to pleaded claims or defenses such as best interest, income, reimbursement, characterization, impairment, or capacity.
If the other side stalls, move to compel on the ground that legal access equals control.
Request attorney’s fees under Rule 215 when delay causes additional motion practice.

Comply with Orders Compelling Production

Calendar every production deadline from the date the order is signed.
Send immediate record requests to all custodians once the order issues.
Follow up with custodians in writing and preserve proof of those efforts.
Produce records on a rolling basis as they are received.
If compliance becomes impossible, seek modification or protective relief before the deadline expires.

Build a Sanctions Record

Attach the original requests, responses, and objections.
Include all prior orders compelling production.
Show the timeline of requests, follow-ups, and missed deadlines.
Quantify fees attributable to the discovery dispute.
Ask for a measured sanction tailored to prejudice and expense, especially attorney’s fees where case-ending sanctions are not warranted.

Avoid the Same Downside in Probate or Family Court

Do not assume third-party subpoenas relieve party-production obligations.
Do not equate “not in hand” with “not in control.”
Do not wait until the sanctions hearing to raise a control objection not timely asserted in written responses.
Do not ignore the significance of statutory access rights to medical or financial records.
Do not let a parallel subpoena track become a substitute for compliance with party discovery and court orders.

Citation

In the Estate of Victoria B. Kubiak, Deceased, No. 01-24-00203-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Houston [1st Dist.] Aug. 11, 2026, no pet. h.).

Full Opinion

Read the full opinion here

Family Law Crossover

The procedural mechanism this case reinforces is the Rule 192.7(b) concept that “possession, custody, or control” includes a legal right to obtain records from a third party, not merely physical possession. The procedure is straightforward: a party serves requests for production; the responding party must produce materials within its possession, custody, or control; and if the responding party has a statutory, contractual, or otherwise enforceable right to obtain the records from the holder, those records may be treated as discoverable party-controlled materials. If the records are not produced, the requesting party may move to compel, obtain an order setting a compliance deadline, and then pursue Rule 215 sanctions if the noncompliance continues. In family law, that sequence can arise with medical and mental-health records relevant to conservatorship, payroll and benefits records relevant to support, financial account records relevant to property division, and educational or treatment records relevant to best-interest determinations. The case is therefore a useful authority for the proposition that subpoena practice and party discovery are complementary rather than mutually exclusive, and that a party’s legal right of access can itself create a production obligation.

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In the Estate of Victoria B. Kubiak, Deceased