In re Estate of Berger, 174 S.W.3d 845 (Tex. App.—Waco 2005, no pet.).
Beneficiary of an alleged trust attempted to prove that Decedent
created an inter vivos trust but was unable to produce the trust
instrument. The court granted a summary judgment against Beneficiary
stating that she did not produce sufficient evidence to raise a fact
issue regarding the existence of a trust. The appellate court reversed.
The court recognized that a trust of real property requires “written
evidence of the trust’s terms bearing the signature of the settlor or
the settlor’s authorized agent.” Property Code § 112.004. However, Rule
of Evidence 1004 permits the admission of other evidence of the contents
of a writing if the original has been lost or destroyed. The court
examined the evidence such as Beneficiary’s affidavit that she saw the
trust instrument both before and after Decedent’s death and was able to
recall significant details about the first page of the document
including a listing of the trust property, the identity of the
beneficiary, and the trust purpose. Consequently, the court concluded
that there was sufficient evidence to raise a fact issue regarding the
existence of a trust which precluded a summary judgment.
Moral: A settlor should locate a safe repository for the trust
instrument so that it is not lost, inadvertently destroyed, or
concealed.
In re Estate of Berger, 174 S.W.3d 845 (Tex. App.—Waco 2005, no pet.).
Beneficiary of an alleged will attempted to prove that Decedent
executed a valid attested will. The court granted a summary judgment
against Beneficiary stating that she did not produce sufficient evidence
to raise a fact issue regarding the existence of the will. The appellate
court reversed.
Rule of Evidence 1004 permits the admission of other evidence of the
contents of a writing if the original has been lost or destroyed. The
court examined the evidence such as Beneficiary’s affidavit that she saw
the will four days before Decedent’s death as well as on the kitchen
counter after Decedent’s death. She also remembered seeing the last page
of the will and that it contained the notarized signatures of Decedent
and two witnesses. The court held that this was more than a scintilla of
evidence that the will was lost thus precluding a summary judgment
against Beneficiary.
Moral: A testator should locate a safe repository for the will so that
it is not lost, inadvertently destroyed, or concealed.