In re Estate of Capps, 154 S.W.3d 242 (Tex. App.—Texarkana 2005, no pet.).
Testatrix’s will could not be found and thus Proponents were required
to follow the requirements of Probate Code § 85 to probate the will,
that is, prove that (1) the original was duly executed, (2) the reason
why the original cannot be produced in court which satisfies the court
that it cannot be produced by any reasonable diligence, and (3) the
contents of the will by testimony of a credible witness who read the
will or heard the will read. The trial court determined that Proponents
proved these three elements and Contestants appealed.
The appellate court affirmed. The court admitted that the original was
last seen in Testatrix’s possession which raises a presumption that she
destroyed it with intention to revoke. But, the court determined that
there was sufficient evidence to rebut the presumption by a
preponderance of the evidence. For example, Testatrix arranged for the
principal beneficiaries to have copies of the will, she announced at a
church meeting her intention to leave her property as set forth in the
will, she continued to have affection for the beneficiaries named in the
will, and she was the type of person who would have told others if she
had revoked the will.
Moral: The court may be willing to stretch the evidence to uphold a lost
will when the court truly believes the decedent intended to die testate.
In re Estate of Capps, 154 S.W.3d 242 (Tex. App.—Texarkana 2005, no pet.).
A handwritten will purported to dispose of the estates of two
individuals (sisters, I think). The evidence showed that the substance
of the will was entirely in the handwriting of one of these two
individuals. The appellate court sidestepped the issue of whether this
will was an attested will (that is, could the signature of a
co-testatrix be considered as the signature of a witness) and determined
that the document was the holographic will of the scribing testatrix.
The signature of the co-testatrix and the notary as well as the notary’s
jurat were surplusage. Consistent with prior Texas law, non-holographic
surplus material does not detract from the holographic character of the
will.
Moral: The court followed the traditional Texas approach of treating
non-holographic material to be mere surplusage because it did not impact
the dispositive scheme of the testatrix. The more interesting
unaddressed question is whether a co-testatrix’s signature on a joint
will may function as the signature of a witness.