Matter of Estate of Standefer, 530 S.W.3d 160 (Tex. App.—Eastland 2015, no pet.).
The trial court admitted Testator’s will to probate
although Proponent was unable to produce the original; he was only able
to locate a photocopy. The appellate court affirmed.
The court began by examining the evidence presented
at trial. The alleged will left Testator’s entire estate to his two sons
to the exclusion of his daughter who is now claiming that Testator died
intestate so she could inherit one-third of the estate. Proponent
testified that Testator told him about the existence of a will and that
he searched diligently for the original after Testator died. Proponent
had also testified that the will was probably stored in a lockbox to
which other people had access and who had even improperly removed a
title to one of Testator’s cars. An employee of Testator testified that
she had previously seen an envelope labeled “Last Will and Testament” in
the lockbox. There was additional testimony about the drafting of the
will and the contents of the will.
The court understood that a presumption exists that
when the original will is last seen in the testator’s presence and
cannot be found after death, that the testator destroyed the will with
revocation intent. However, in the case, the evidence discussed above
was sufficient to rebut the presumption by a preponderance of the
evidence.
The court next addressed whether the will was
properly executed. Because the will had a proper self-proving affidavit,
there is a presumption of proper execution even though the affidavit is
merely a photocopy. Testator signed the will with his middle and last
names rather than with his first, middle, and last names as was typed on
the will. The court explained that “there is no requirement that [a
testator’s] signature match exactly the type-written version of his
name.” Id. at *5. Other arguments about the validity of the signature
(handwritten or stamped, thickness of ink was different between Testator
and the witnesses, etc.) were likewise rejected.
The court also addressed the fact that the person
who wrote the will for Testator was not an attorney and thus by engaging
in the unauthorized practice of law, her testimony lacks credibility
about what happened during the will execution ceremony. The court stated
there was no authority to support this proposition.
Moral: To avoid problems such as those in
this case, a testator needs to store the original will with great care
and seek the assistance of an attorney with estate planning experience
to draft the will, rather than bookkeeper who then would be practicing
law without a license.