In re Estate of Jones, 197 S.W.3d 894 (Tex. App.—Beaumont 2006, pet. denied).
Proponent filed a will for probate claiming it was Testator’s
original will. After an anonymous caller tipped off the clerk’s office,
it became apparent that the will was not an original but rather a copy.
Although the court later withdrew the will from probate and revoked
letters on procedural grounds, the court eventually admitted the will to
probate even though there was no evidence as required by Probate Code §
85 that the contents of the will be proved by the testimony of a
credible witness who had read it or heard it read when the original is
not produced in court.
The appellate court affirmed after making the remarkable holding that
Probate Code § 85 was inapplicable. The court discussed a long line of
Texas cases, including the recent case of Garton v. Rockett, 190 S.W.3d
139 (Tex. App.—Houston [1st Dist.] 2005, no pet. h.), which provide that
a proponent of a lost will must comply with the Probate Code and
introduce evidence of the will’s contents from someone who read the
original will or heard the original read. Nonetheless, the court stated
that it does
not see the ‘read it or heard it read’ requirement in section 85 as
intending to determine the accuracy of a photocopy of a written will. *
* * The purpose of section 85, as we see it, is to establish the
contents of a written will not in the custody of the court and that can
only be reproduced by a written order of the probate court based on
testimony describing the will’s contents. * * * If a writing is an
accurate reproduction of the valid unrevoked written will of the
testator, the probate court need not rely on or require the testimony of
a credible witness who testifies from memory regarding the provisions of
the testator’s will, because the written terms of the will are before
the court.
Based on this analysis, the court concluded that section 85 does not
apply when a photocopy of a will is produced in court because the copy
is a written will produced in court.
Moral: A photocopy of a lost will may act as an original will even
without compliance with Probate Code § 85.
Comment: I personally believe that this opinion is directly contrary to
established Texas statutory and case law. A photocopy of a will is not a
will just as a photocopy of a $100 bill is not a $100 bill. The court
was obviously attempting to carry out the decedent’s intent by upholding
the probate of the will. However, the protections of Section 85 are
there to prevent fraud by assuring that there is independent evidence of
the contents of the will which cannot be presented to the court for
examination. If the rules are to be changed, it is the Texas Legislature
that should make the change, not the courts.