Thursday, January 8, 2009
In the case of In re Estate of Turner, 265 S.W.3d 709 (Tex. App.—Eastland 2008, no pet. h.), the trial court admitted a photocopy of Testator’s will to probate even though the original will could not be found after what Beneficiary claimed was a diligent search. The appellate court affirmed.
The court recognized that “[w]hen the original will cannot be located and the will was last seen in the testator’s possession, a presumption arises that the testator destroyed the will with the intent of revoking it.” Id. at 712. The proponent of the will must overcome the revocation presumption by a preponderance of the evidence. The court concluded that the evidence submitted was sufficient to rebut the presumption. For example, Sister (sole beneficiary) testified seeing the will one week before Testator’s death and Girlfriend saw it on the day of Testator’s death. Girlfriend testified that Testator showed him his will, returned it to its usual storage location, watched television for 1.5 hours, went to his bedroom, and fatally shot himself. Testator’s disinherited siblings and many other people had access to Testator’s house shortly after his death. In addition, there was evidence of a close relationship between Sister and Testator and no evidence of recent discord.
Moral: The presumption of revocation which arises when the original will cannot be found may be rebutted by a preponderance of the evidence.