Wills

Lost Will

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.

 

Wills

Formalities

Holographic Joint Will

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.



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