In re Estate of Turner, 265 S.W.3d 709 (Tex. App.—Eastland 2008, no pet.).
The trial court admitted a photocopy of Testator’s will to probate
even though the original will could not be found after what Beneficiary
claimed was a diligent search. The appellate court affirmed.
The court recognized that “[w]hen the original will cannot be located
and the will was last seen in the testator’s possession, a presumption
arises that the testator destroyed the will with the intent of revoking
it.” Id. at 712. The proponent of the will must overcome the revocation
presumption by a preponderance of the evidence. The court concluded that
the evidence submitted was sufficient to rebut the presumption. For
example, Sister (sole beneficiary) testified seeing the will one week
before Testator’s death and Girlfriend saw it on the day of Testator’s
death. Girlfriend testified that Testator showed him his will, returned
it to its usual storage location, watched television for 1.5 hours, went
to his bedroom, and fatally shot himself. Testator’s disinherited
siblings and many other people had access to Testator’s house shortly
after his death. In addition, there was evidence of a close relationship
between Sister and Testator and no evidence of recent discord.
Moral: The presumption of revocation which arises when the original will
cannot be found may be rebutted by a preponderance of the evidence.