In re Estate of Wilson, 252 S.W.3d 708 (Tex. App.—Texarkana 2008, no pet.).

Wills

Lost Will

 

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.



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