What Happens if the Original Will Is Missing?

Background

Myrtle Brown died in June 2018 at 93 years old.  She was not married and had no children.  The value of her estate was approximately $750,000.

Ms. Eriks filed an application for probate of a copy of a will seeking to introduce a will dated October 1, 2009 that named the Humane Society as the sole devisee and named Eriks as the independent executor. The original of the will was not located, and it was believed to have been accidentally disposed of during the guardianship of Brown. Thus, a copy of the will was attached to the application.  The copy shows the will was signed by Brown, two witnesses, and contained a self-proving affidavit.  The application claimed this will was never revoked.   The application alleged that Brown would not have been capable of executing another will after the October 2009 will as she became incapacitated shortly thereafter.

Ms. Wylie, the attorney who served as the guardian ad litem for Ms. Brown and the guardian of her estate, filed an application for determination of heirship.  She served in the guardian role since October 19, 2009 after Brown fell and was hospitalized. She sought to have the court determine the heirs of Brown so that she could distribute the estate to those entitled to receive it.  She identified a cousin, Annabell Louise Powell, as an heir of the estate.

The Humane Society filed an application for probate of a will not produced in court stating the same facts as Eriks did in her application.  They also attached a “Waiver of Citation” and “Section 258.051 Affidavit” from Brown’s cousin, Powell. In the affidavit, Powell stated that she understood that she would have inherited assets had Brown died intestate, but that she understood she is to receive nothing because Brown executed a will leaving everything to the Humane Society. The Humane Society also filed a jury demand of any contested matter in the case.

Probate Hearing

At the hearing on her application, Eriks testified she met Brown when Brown’s caregivers called her to come and help because they “saw irregularities” and kept hearing her talk about wanting to get Powell off the will.  Eriks told the caregivers to find a lawyer.  Eriks did not know if Brown ever revoked the October 2009 will and had no firsthand knowledge of what happened to the original.  She did not think Brown had any reason to dispose of it and testified that Brown tended to keep every scrap of paper.  She testified that Brown had a history of hiding and may have hidden the originals.  Eriks said she did not look anywhere for the original 2009 will. When asked why Brown would have named the Humane Society as the sole devisee, Eriks testified that Brown was angry at Powell for allegedly stealing from her and that she loved animals and had a precious cat.

Both of the witnesses to the will testified that she saw Brown sign the will on October 1, 2009 and she appeared to be of sound mind.  The lawyer who prepared the will testified that he would not have had someone sign a will if they lacked capacity.

The court denied Eriks’ motion for application of the copy of the 2009 will.

The Humane Society moved to reconsider, arguing there was sufficient evidence of Brown’s death, timely filing of the application, proper jurisdiction, proper citation, valid execution of the will, testamentary capacity, contents of the non-produced will, reason for non-production and non-revocation, and Eriks’ entitlement to serving as executor. The court held a hearing on this motion.  The attorney who drafted the will testified  that the copy was a true and correct copy of the will Brown executed at his office.  The lawyer searched his office but did not have the original as it was his practice to give originals to clients.  He testified that he met with Brown more than once, he spoke with her alone regarding her desire for the will, and he would not have let her execute a will if he thought she lacked capacity.

The court denied the motion for reconsideration.  It entered a number of findings of facts and conclusions of law including a finding that there was not sufficient evidence of the cause of non-production or non-revocation of the will.  The Humane Society appealed.

Applicable Law

Texas law allows a copy of a will to be probated if the original cannot be found.  A party seeking to probate a copy, rather than the original, must prove the will in the same manner provided for an attested will or holographic will. The contents of the will must be proved by a credible witness who read either the original or a copy of the will, has heard the will read, or can identify a copy of the will. Additionally, the proponent must also prove “the cause of non-production” of the original will in a manner “sufficient to satisfy the court the will cannot by any reasonable diligence be produced.”  The proponent must show by a preponderance of the evidence that the original will could not be located after a reasonably diligent search, but need not establish how the original will was lost.

Appellate Court Opinion

The First Court of Appeals affirmed.  [Read Opinion here.]

Non-Production

First, the court addressed the issue of non-production of the original will.  Although Eriks testified she did not know what happened to the will and that she had no reason to think Brown would have disposed of it, she also testified that she did not search anywhere for the original of the 2009 will.  She also offered no testimony that anyone else searched Brown’s house for the original.

Brown’s guardian ad litem, Wylie, did make comments to the court at the probate hearing, including that she had searched the house and safety deposit box and there was no original in either location.  Wylie was not, however, called as a witness in the case.  She was not sworn in or subject to cross examination.  Thus, these comments were not offered as a witness and unsworn statements by an attorney are not considered evidence. Because Wylie’s statements could not be considered, the only evidence before the court as to the search for the original will was that of Eriks, who testified she did not search for the original and offered no claim that anyone else did either.

In light of this, the Humane Society failed to show that the original could not be located after a reasonable search.

Jury Demand

The court also held that the Humane Society failed to preserve its claim that it should have been entitled to a jury trial on the application for appellate review.  They participated in the hearing on the probate application without objecting or otherwise indicating that they wished to assert their demand for a jury.

Appeal

The Humane Society has received extensions to file their Petition for Review with the Texas Supreme Court and the deadline for doing so has not yet passed.  An appeal may still be forthcoming.

Key Takeaways

Most importantly, this case is a reminder of the importance of ensuring the original of an executed will is kept somewhere safe, easy to locate, and that there are people who know where the original will is located.  Having all of one’s key legal documents in one place is a critical, but often overlooked, step of the estate planning process.  To read more about this, click here.

Additionally, this case offers a good reminder that in order for facts to be considered in court, they must be properly offered as admissible evidence.  For example, had Wylie been sworn in as a witness and testified, her statements regarding the search for the will could have been considered and weighed by the court.  However, without those statements being formally admitted, the court may not consider then in reaching a decision.