In re Estate of Catlin, 311 S.W.3d 697 (Tex. App.—Amarillo 2010, pet. denied).
The trial court admitted a lost will to probate under Prob. Code §
85. The appellate court affirmed rejecting Contestant’s assertion that
there was insufficient evidence to establish why the original could not
be produced and thus the presumption of revocation which arises when the
original will is not available for probate was not rebutted. In an
almost unbelievable opinion, the court accepted Proponent’s explanation
that he looked at the Testator’s home, office, safety deposit boxes, and
drafting attorney’s office but could not find the original. The court
explained that Proponent did not have to demonstrate an affirmative
reason why the original cannot be located such as “the eating habits of
a neighbor’s goat, the occurrence of a Kansas tornado, the devastation
of a flash flood, or the like.”
Moral: This is a remarkable and shocking opinion. The court basically
makes it impossible for a testator to revoke a will by physical act
because even if the will cannot be found and there is no affirmative
reason why it cannot be found, a copy may nonetheless be probated.
Accordingly, prudent practice is to revoke a will by subsequent writing
and endeavor to ensure that the new writing is found after death.
In an oddly worded will, the residuary of Testator’s estate passed
into a testamentary trust for the benefit of a beneficiary who
predeceased Testator and whose death caused the trust to terminate. A
debate arose regarding whether the residuary estate passed to the
remainder beneficiaries of the testamentary trust or via intestacy. Both
the trial and appellate courts determined that the residuary passed to
the remainder beneficiaries even though the testamentary trust was both
created and terminated at the same moment. The court was unwilling to
adopt a different interpretation because to do so would render terms of
the will meaningless, circumvent Testator’s intent as reflected in the
will to give his son only a small part of the estate, and cause 90% of
Testator’s estate to pass by intestacy to this son.
Moral: Wills should be drafted with care to take into account how
various contingencies would be handled.