In re Estate of Catlin, 311 S.W.3d 697 (Tex. App.—Amarillo 2010, pet. denied).

Estate Administration

Lost Will


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.