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I Can’t Find the Original Will – Now What?

By Mark Caldwell and J. Ellen Bennett July 1, 2020

Locating the original will of a loved one or friend after death can be difficult – especially when there is no “lead” on where the original may have been kept. In fact, it is not uncommon to never find the original. Many times, only a copy can be located. Fortunately, Texas Estates Code Section 256.156 allows a copy (i.e. a “lost will”) to be admitted to probate if the person offering the will for probate has diligently searched for the original and cannot locate it. To assist in demonstrating a diligent search for the will was conducted, it is also helpful to request that the heirs deposit any original will (to the extent they have one) with the clerk of the court as required by Texas law. 1

The validity of the lost will must be proved as any other will would be (as provided in Texas Estates Code Section 256.153 for attested wills and Texas Estates Code Section 256.154 for holographic wills). 2 However, attempting to probate a copy of a will involves a couple of special hurdles – establishing that the original will was not revoked, as well as giving notice to the heirs of the person who made the will, the “testator.”

Normally, the person offering a will – including an original will – for probate has the burden to prove that testator never revoked the will (i.e. non-revocation). 3 Under Texas Estates Code Section 253.003, a written will may be revoked if the testator later makes a new: (1) will, (2) amendment to a will, called a “codicil,” or declaration in writing that is executed formally like a will. A testator may also revoke a written will by: (1) destroying or cancelling the will; or (2) causing the will to be destroyed or cancelled in the testator’s presence. 4

However, when a person offers a will for probate, he or she can easily establish non-revocation through an evidentiary presumption. Once it is proven that a will is otherwise valid and has been executed with the required elements, the law applies a rebuttable presumption of continuity, and, unless some evidence shows that the testator revoked the will, it is not necessary for the person offering the will to produce direct evidence that the testator did not revoke the will. 5

Revocation by destruction is the main issue to address when offering a copy of a will for probate. This is because when a will was last known to be in the testator’s possession and cannot be located after death, a rebuttable presumption of revocation arises. 6 The standard of proof necessary to rebut the presumption is a preponderance of the evidence. 7

Applicable Texas case law establishes that the presumption of revocation can be rebutted in a variety of ways:

  • In re Estate of Catlin, 311 S.W.3d 697, 700 (Tex. App.—Amarillo 2010, pet. denied)(presumption of revocation overcome despite evidence that testator wanted to make some changes to his will before he died where extensive search of testator’s home, office, safe deposit boxes did not turn up original but only a copy; court noted it was not necessary for the proponent to also prove an affirmative reason why the original could not be located such as “the eating habits of a neighbor’s goat, the occurrence of a Kansas tornado, the devastation of a flash flood, or the like.”).
  • In re Estate of Capps, 154 S.W.3d 242, 245 (Tex. App.—Texarkana 2005, no pet.) (op. on reh’g)(evidence that the decedent recognized his will’s continued validity and had continued affection for the primary beneficiary of his will, without evidence that he was dissatisfied with the will or had any desire to change or cancel it, was sufficient proof of circumstances contrary to rebut the presumption).
  • Matter of Estate of Standefer, 2015 WL 5191443, at *3 (Tex. App.—Eastland, 2015)(testimony that witness saw an envelope entitled “Last Will and Testament” in Decedent’s lockbox combined with the fact that other people had access to the lockbox and other documents were missing was more than a scintilla of evidence to overcome presumption of revocation).
  • In re Estate of Perez, 324 S.W.3d 257, 261–62 (Tex. App.—El Paso 2010, no pet.)(more than a scintilla of evidence existed to rebut presumption of non-revocation where evidence established that Decedent’s will was kept in cedar chest at home, and his family had the ability to enter this chest, and that his daughters had, in fact, taken some of Decedent’s personal property from the chest before and after his death and Decedent never asked his attorney to prepare a new will).
  • Woods v. Kerner, 501 S.W.3d 185 (Tex. App.–Houston [1st Dist.] 2016, no writ)(presumption of revocation overcome where Hurricane Ike produced six feet of water that destroyed the contents of testator’s home and saturated paperwork was discarded).
  • In re Estate of Wilson, 252 S.W. 3d at 713 (quoting In re Estate of Capps, 154 S.W.3d at 245); “presumption can be overcome by proof and circumstances contrary to the presumption” or evidence that the will “was fraudulently destroyed by some other person.”

On the other hand, there are instances where Texas courts have held the presumption of revocation has not been overcome:

  • In re Estate of Wilson, 252 S.W.3d 708, 713 (Tex. App.—Texarkana 2008, no pet.)(bare conclusory assertion from proponent that as far “as [proponent] knew and believed,” Decedent left a will which was never revoked was insufficient to overcome presumption of revocation where will could not be located after death).
  • See Mingo v. Mingo,507 S.W.2d 310 (Tex. Civ. App.—San Antonio 1974, writ ref’d n.r.e.)(affirming trial court’s denial of a will’s probate based on a finding that the proponent failed to overcome the presumption that the decedent revoked the contested will where the will was kept in a bank safety deposit box with strict and recorded access and evidence at trial showed that an inventory of the safety deposit box after decedent’s death did not reveal any will).

When a person attempts to probate a copy of a will, he or she must serve a legal notice called citation on the testator’s heirs by personal service, if the heirs are residents of this state and their addresses are known. 8 Service of the citation required may be made by publication instead of personal service if: (1) the heirs are not residents of this state, (2) the names or addresses of the heirs are unknown, or (3) the heirs are transient persons. 9  To save time and expense, it is not uncommon for a party attempting to probate a copy of a will to request that the heirs waive formal personal service of the citation.

1 Tex. Estates Code § 252.201.

2 See Tex. Estates Code 256.156.

3 Tex. Estates Code § 256.152(a)(1); Bostic v. Bostic, 2003 WL 22047902, at *2 (Tex. App.—Tyler 2003).

4 Tex. Estates Code § 253.002.

5 Matter of Page’s Estate, 544 S.W.2d 757, 760 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.).

6 In re Estate of Wilson, 252 S.W.3d 708, 713 (Tex. App.—Texarkana 2008, no pet.).

7 In re Estate of Wilson, 252 S.W.3d 708, 713 (Tex. App.—Texarkana 2008, no pet.).

8 Tex. Estates Code § 258.002.

9 Id.

Mark R. Caldwell routinely represents executors, guardians, and beneficiaries in complex estate, trust, and guardianship litigation. He has also represented fiduciaries in all phases of estate, trust, and guardianship administration. Mark is passionate about holding those who exploit others accountable and defending those who have been wrongfully accused of doing so. Mark enjoys the investigatory aspects of estate and trust litigation, including reviewing and analyzing medical, financial, and suspicious property records and transactions. Mark is committed to developing and maintaining strong, personal relationships with his clients. He endeavors to offer smart, pragmatic and cost-effective legal advice. Mark believes that the strongest winning position is one that is simple, direct, and understandable.

Ellen Bennett is Board-certified in Estate Planning and Probate and a shareholder with the law firm of Caldwell, Bennett, Thomas, Toraason & Camp, PLLC, in Dallas, Texas. She focuses her practice in trial and appellate courts on litigation concerning estates, trusts, and guardianships. Ellen also guides personal representatives, trustees, beneficiaries, and guardians through the administration process. Her successful experience includes will contests and interpretations, guardianship disputes, trust disputes and modifications, accounting challenges, and suing and defending on breach of fiduciary duty claims. She recognizes that each case presents complex facts, and she knows that the legal process can be confusing. Ellen enjoys working with her clients to bring clarity to the legal process and achieve the resolution her clients seek – whether through settlement or at trial.