Bracewell v. Bracewell, 20 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Testatrix executed one will in 1975 leaving
her entire estate to Husband and a replacement will in 1989 leaving
significant assets to Son. The trial court determined that the 1989 will
was invalid because Testatrix lacked testamentary capacity and
consequently admitted the 1975 will to probate. Son appealed.
The appellate court affirmed. After a careful review of the testimony of
the lay and expert witnesses who testified at trial, the court
determined that there was sufficient evidence to support the jury’s
finding that Testatrix lacked testamentary capacity when she signed the
1989 will.
Moral: A finding by the trial court of lack of testamentary capacity is
difficult to overturn on appeal.
Bracewell v. Bracewell, 20 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
The trial court admitted Testatrix’s will to probate without determining
that all of the formalities for a valid will were satisfied because the
will was accompanied by a self-proving affidavit. Prob. Code § 59. The
appellate court affirmed because the self-proving affidavit is prima
facie evidence that Testatrix properly executed the will. Prob. Code §
84(a). The contestant presented no evidence or argument to rebut the
presumption of formality compliance.
The court, however, paid little attention to the fact that the original
will was not presented for probate. Instead, only a photocopy was
produced. The court did not discuss how the proponent was able to rebut
the presumption of revocation which arises when the original cannot be
produced.
Moral: Every will should be accompanied by a valid self-proving
affidavit to make the probate process faster, easier, and more
economical.