Can You Probate A Lost Will In Texas?

A will is considered lost in Texas probate if the original will cannot be found.  Probate is not impossible just because you can’t find the original of a decedent’s will.  In Texas, a lost will can be admitted to probate.

How Do You Probate A Lost Will In Texas?

A party seeking to probate a copy of a will, rather than the original, must prove the will in the same manner as provided for an attested written will or holographic will.

Section 256.156 of the Texas Estates Code states:

(a)  A will that cannot be produced in court must be proved in the same manner as provided in Section 256.153 for an attested will or Section 256.154 for a holographic will, as applicable.  The same amount and character of testimony is required to prove the will not produced in court as is required to prove a will produced in court.

(b)  In addition to the proof required by Subsection (a):

(1)  the cause of the nonproduction of a will not produced in court must be proved, which must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced; and

(2)  the contents of the will must be substantially proved by the testimony of a credible witness who has read either the original or a copy of the will, has heard the will read, or can identify a copy of the will.

 

A Lost Will Is Presumed To Have Been Destroyed

When an original will cannot be located and was last seen in the testator’s possession, a presumption arises under Texas law that the testator destroyed the will with the intent of revoking it.  This presumption can be overcome by evidence of:

  1. Circumstances contrary to the presumption; or
  2. That some other person fraudulently destroyed the will.

 

Show That The Lost Will Was Validly Made Under Texas Law

The first step in getting a lost will admitted to probate under Texas law is to show that the will meets the legal requirements for a valid will under Texas law.  Read What Are the Requirements For a Valid Will In Texas?

Present Evidence Showing Why the Original Will Cannot Be Produced

In addition to proving that the will was validly made under Texas law, the proponent of the lost will is required to show why the will cannot be produced.  Remember, there is a presumption under Texas law that if an original will that was last seen in the testator’s possession cannot be found, that it has been destroyed.

Evidence might include that a fire or disaster destroyed decedent’s papers, and that therefore the loss of the will was not intentional.  Or, perhaps a bad actor had access to the decedent’s important papers, and had an incentive to take the original will because they were disinherited under its terms.

Prove The Contents Of the Lost Will

In order to have a lost will admitted to probate under Texas law, the contents of the will must be shown.  A credible witness can testify to the will’s contents or identify a copy of the will to meet this requirement.

Case Study:  Woods v. Kenner

In Woods v. Kenner, 501 S.W.3d 185 (Tex. App. — Houston [1st Dist.] 2016, no pet.), the probate court admitted a copy of a lost will that left decedent’s estate to his two children and his two step-children.  The probate court admitted the lost will after initially finding that decedent died intestate and declaring decedent’s two children decedent’s sole heirs.  One of decedent’s children, on appeal, contended that the evidence was insufficient to support the probate court’s finding that the decedent did not revoke his will.

The appellate court found that there was sufficient evidence to support the Texas probate court’s finding that the Decedent did not revoke his will.  The drafting attorney testified that she “prepared” a will for decedent in 1999.  She identified a copy of the will referenced in court as the will that she had prepared for the decedent. The drafting attorney further testified that in 2008, Hurricane Ike caused “six feet of water” to enter the decedent’s house and destroy its contents. Although the decedent had, in 2011, mentioned to her that he was “thinking about redoing his will,” he never did.  The Texas appellate court was satisfied the evidence was sufficient to support the finding that the original was destroyed by the flooding of decedent’s house by the hurricane and upheld the admission of the lost will to probate.

It is a much simpler task to admit an original will to probate, rather than establish a lost will under Texas law.  Testators will often leave their original will with their Texas probate attorney for safekeeping.

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