In re Estate of Perez, 324 S.W.3d 257 (Tex. App.—El Paso 2010, no pet.).
Testator died after executing two wills: one in 1975 leaving his
estate to his Children and another in 1993 leaving his estate to his new
Wife. Wife was successful in having the 1993 will admitted to probate
even though she could not produce the original. Children appealed.
The appellate court affirmed. After reviewing Probate Code § 85, the
court reviewed the evidence and determined that the it was sufficient to
overcome the presumption of revocation that arises when the original
will cannot be produced in court. The evidence the court found
determinative included (1) Testator never asked his attorney to revoke
the 1993 will or to make a new will, (2) the keys to the cedar chest in
which Testator placed the will were easily available to Children before
his death, and (3) several witnesses testified they saw Children remove
items from the chest. However, there was no evidence that Children
removed the 1993 will and Children testified they did not even know the
will was in the chest.
Moral: A testator who wishes to revoke a will should not rely on
revocation by physical act. As this court stated, only “a scintilla of
evidence” is needed to support a trial court’s determination that a will
proponent has rebutted the revocation presumption. Thus, revocation by a
subsequent writing is preferable. Or, at least, a testator should make
“a big production” out of revoking by physical act to create sufficient
evidence of the revocation.
Wife attempted to probate Husband’s will over ten years after his
death. Both the trial and appellate courts determined that she was “not
in default” under Probate Code § 73(a) for probating Husband’s will
until after four years from his death. Wife had limited financial
resources and could not afford to probate the will timely. She also
testified that she was relatively uneducated having only attended grade
school. She explained that she believed it was unnecessary to probate
Husband’s will and did not know about the four year time limit. Once she
realized she needed to probate the will to stop the claims of Husband’s
children, she filed the will for probate within thirty days.
Accordingly, the court held that she exercised reasonable diligence and
was not in default.
Moral: A court may be very willing to accept excuses for not probating a
will timely such as, “I could not afford it” or “I did not know better.”