In re Estate of Wilson, 252 S.W.3d 708 (Tex. App.—Texarkana 2008, no pet.).
After Husband died, Wife was successful in probating Husband’s will
even though she could not locate the original will. Son (Wife’s
step-son) contested the probate of the will claiming that the evidence
was legally insufficient to rebut the presumption of revocation that
arises when the original will cannot be located.
The appellate court agreed with Son. The court began its analysis by
recognizing that when a will was last known to be in the testator’s
possession and cannot be located after death, a presumption of
revocation arises which can be rebutted by a preponderance of the
evidence. The court also explained that “the testator’s continued
affection for the chief beneficiary [of the will], without evidence
tending to show the decedent’s dissatisfaction with the will or any
desire to cancel or change the will, is sufficient to rebut the
presumption of revocation of a missing will.” Wilson at 713.
The court then examined the record and found it lacking of any direct
evidence of why the original will could not be located. Wife’s mere
statement that as far as she knew and believed, Husband had not revoked
the will is not evidence of the asserted facts. In addition, there was
no evidence of Husband’s continued affection for Wife or that Husband
had continued to recognize the will’s validity. Accordingly, the court
held that the evidence was legally insufficient to rebut the revocation
presumption and remanded the case to the trial court.
Note: This case also involved several procedural issues such as the
requirements of a restricted appeal, when evidence is considered legally
insufficient, and proper extent of a remedy (render or remand).
Moral: Original wills need to be protected so that they are available at
the time of probate and are not inadvertently lost, destroyed, or
located by disgruntled heirs.