Garton v. Rockett, 190 S.W.3d 139 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
Although Executor did not possess Testator’s original will, Executor
attempted to probate a copy of the will. The copy appeared to comply
with the requirements of a valid will under Texas law. The key issue was
whether Executor substantially proved the contents of the will through
the testimony of a credible witness who either read the will or heard
the will read as required by the lost will procedure provided in Probate
Code § 85. The jury determined that Executor had supplied sufficient
evidence of the contents but the judge granted Heirs a judgment
notwithstanding the verdict. The appellate court affirmed.
The court examined the evidence and concluded that Executor “failed to
offer any testimony concerning the contents of the original will by a
credible witness who read the will or heard it read.” Garton at 145.
Although Executor put on the testimony of a witness and the notary, they
admitted that they either did not read the original will or could not
recall its contents. Reading a copy of the will is not a substitute for
reading the original will.
Moral: A proponent of a lost will must prove the contents of the lost
will through the testimony of a witness who read the original will or
heard the original will read aloud.
Garton v. Rockett, 190 S.W.3d 139 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
The named Executor attempted to probate the will. The jury found that
the will was valid and that Executor filed the probate proceeding in
good faith and with just cause. The judge ignored these findings and
granted a judgment notwithstanding the verdict. The appellate court
agreed with the trial judge that the evidence did not support the jury’s
finding that the will was valid. However, the court agreed with Executor
that he filed the application in good faith and with just cause and thus
was entitled to a reasonable attorney’s fee under Probate Code § 243.
The court explained that Executor had presented sufficient evidence to
justify the jury’s finding. The court also pointed out that § 243 does
not require that an executor be successful in probating the will to be
entitled to a reasonable attorney’s fee.
Moral: A named executor who attempts to probate a will may recover
reasonable attorney’s fees even if the attempt fails as long as the
executor acted in good faith and with just cause.