The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Many times this firm is faced with a request for probate of a Will when the original has been lost and only a photocopy is in existence. The question presented is, “Can a copy of the Will be probated when the original cannot be found?” The answer is YES, under certain circumstances a copy can be probated, but only after an offering of evidence regarding the original that is sufficient to overcome the rebuttal presumption that the original was destroyed by the testator in an effort to revoke it.
The proof required to prove up a copy of a Will is in addition to the proof required to prove the original of the Will. Pursuant to Est. Code §256.156, the extra steps involved are:
- The cause of nonproduction of the Will not produced in court must be proven, and that proof must be sufficient to show the court that the Will cannot by any reasonable diligence be produced; and
- 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.
The ideal witness to present this evidence through testimony is a person who has seen the original Will since the death of the testator and can testify that the copy submitted is a true and correct copy of the original that was seen. That being said, it is highly unusual those exact facts can be shown.
In a recent case handled by this firm, the decedent and witness (husband-and-wife) executed Wills at the same time in the late 1980s that were exact mirror Wills of each other. The Wills were signed in the offices of an attorney who was near the age of retirement at the time of execution and was located in a distant city. Mr. and Mrs. X received only a copy of the Will and had the attorney retain the original in his office. Unfortunately, when Mrs. X died, Mr. X had only a photocopy of the Will, and, in spite of a diligent search, was not able to recover the original. It is probable, based upon the attorney’s age, that he predeceased Mrs. X in death.
Fortunately, Mr.X was able to convince the court, through his testimony and by a preponderance of the evidence, that the original of the Will had not been destroyed by Mrs. X, and that the photocopy filed with the court was a true and correct copy of the Will that Mrs. X signed.
The case of Mr. and Mrs. X was further simplified by the fact that all children of the decedent were also the children of her husband, and all children were willing and able to make an appearance in the probate court to assure that there were no heirs for whom there was not an accounting.
When lines of heir-ship are clearly defined and easily provable as in the above example, probating a copy of the Will is only slightly more difficult and requires only slightly more proof. This matter is, however, greatly complicated when provisions of the Estates Code Article 258.002 are applied. These conditions place an additional burden on the person offering a copy of the Will to probate by requiring that citation be issued to “all parties interested in the estate” of the decedent.
The broad term, “all parties interested in the estate,” of the decedent encompasses all possible heirs, which includes any person who would have been a beneficiary of the estate under the laws of intestate succession, as if no Will had existed. At first blush, this doesn’t seem to create much of a problem, but when you apply it to the real world,the problems become very difficult and much more expensive to overcome.
An example can be shown from my own practice. Decedent in that case was an elderly gentleman who had four children, three of whom had predeceased him. This was not a close-knit family, and he had an unknown number of grandchildren whom he had never met. In fact, he had not seen three of his four children in more than 40 years. He prepared a Last Will and Testament, leaving everything that he owned including his home, to a granddaughter whom he did know and who also was his primary caretaker for the last 15 years of his life.
The above described estate should have been simple to settle, and would have been, but for the fact that the original Will was not available and we had to rely on a photocopy. The procedural nightmare that ensued was the necessity for serving citation on persons that nobody had spoken to or seen for the last 40 years. We were not even certain as to the number of the children or grandchildren who were alive or deceased, leaving lineal descendants of their own.
The bottom line is that the original of your Will is a valuable document and should be protected from accidental destruction. It is also a good idea to let your executor know the location of the original. You do not need to provide a copy or the original to the executor, unless you wish to do so, but you do need to advise the executor regarding the location of the original.
Probating of a loved one’s Will should not be excessively time-consuming or difficult, but the court needs to be certain that the Will admitted to probate is truly the Last Will and Testament of the decedent.
As always, when you are dealing with an attorney, you should be certain that he/she has demonstrated expertise in that particular area of the law.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see www.houstontxprobate.com
IF YOU WISH TO SUGGEST A TOPIC FOR THIS COLUMN, SEND TO: JAMES M. BRIGHT 14340 TORREY CHASE BLVD., SUITE 150 HOUSTON, TX 77014
Attorney at Law