Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, January 25, 2011

Lost Wills and Late Probate -- Texas Style


In the case of In re Estate of Perez, 324 S.W.3d 257 (Tex. App.—El Paso 2010, no pet. h.), 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.

In the same case, 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.”


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