In re Estate of Jones, 197 S.W.3d 894 (Tex. App.—Beaumont 2006, pet. denied).

Estate Administration

Lost Wills

Contents Properly Proved


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.