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Proving Up a Testamentary Trust When the Trust Document is Lost

When a person dies, their will must be probated in order to distribute their assets according to their wishes. In most cases, the original will is presented to the court for probate. This can be tricky when the original will is lost.

But what happens if the lost will includes language that creates a trust? The language of the trust matters and can result in vastly different outcomes for the property. This is the very nature of trusts and why the documents are typically very long.

If the will is lost and contains a trust, can you probate the lost will using the normal process for this and thereby create the testamentary trust that is set out in the lost will?

The court addresses this in In re Estate of Catlin, 311 S.W.3d 697 (Tex. App. 2010) in the context of a lost will that included a testamentary trust.

Facts & Procedural History

This case was an appeal concerning a lost will made by Jerry Don Catlin (Catlin Sr.). The will included language for a testamentary trust.

Because the will was lost, a copy of the will was probated instead. Jerry Don Catlin II (Junior), Catlin Sr.’s son, challenged the efforts made by his stepbrother, Douglas Glenn Barnes, in probating the copy.

Junior lost his challenge and filed an appeal. He raised two issues in his appeal. His two issues involve the sufficiency of the evidence underlying the trial court’s conclusion that the original will was lost, and the accuracy of the trial court’s interpretation of the document that it created a testamentary trust.

About Testamentary Trusts

Before getting into how to prove a lost will, let’s first consider what a testamentary trust is.

A testamentary trust is a type of trust that is created through a person’s will and goes into effect upon their death. It serves to manage and distribute the assets and property of the deceased individual, following their specified wishes.

This trust is not included in a separate trust document. It is established by language included within the testator’s will. As such, it does not become active until their passing.

The testator appoints a trustee, who can be an individual or a corporate entity like a bank, responsible for administering the trust and carrying out the instructions outlined in the will. The beneficiaries, which can include individuals or charitable organizations, are designated by the testator to receive the assets held in the testamentary trust. The testator outlines specific terms and conditions in their will, specifying how the trust is to be managed and how the assets are to be distributed.

The testamentary trust usually undergoes the probate process, which validates the will, settles the estate, and ensures the proper establishment of the trust. Until the testator’s death, the terms and conditions of the trust can typically be modified or revoked. However, after the testator passes away, the trust becomes irrevocable.

Admitting a Will to Probate

With that explanation, let’s consider how a will is admitted to probate.

There is a very specific process for admitting a will to probate in Texas. This includes various filings, which start with filing an application for probate.

After the application is filed, the party in possession of the original version of the will has to lodge or file the will with the court.

Once the hearing is set, the judge will actually inspect and review the original version of the will. With this document in hand, the judge will hear testimony from witnesses saying that the will is valid.

This is the normal process when the parties have the original will.

Admitting a Copy of a Lost Will to Probate

The Texas Estates Code provides that a written will that cannot be produced in court shall be proved in the same manner as provided for an attested written will or a holographic will.

In Texas, a lost will can be probated if the following conditions are met:

  • The proponent of the will must prove that the original will was in existence at one time.
  • The proponent of the will must prove that the original will was lost through no fault of their own.
  • The proponent of the will must provide a copy of the will that is a true and correct copy of the original will.

If these conditions are met, the court will admit the copy of the will to probate and distribute the assets of the estate according to the terms of the will.

Proving-up the Lost Will

How do you actually go about doing this? The short version is that you present the testimony of two witnesses to prove the copy of the will.

The contents of the will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.

The proponent of the will must also prove the cause of the will’s non-production. This is also usually done by putting on testimony. The testimony must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced.

The Courts Holdings in This Case

These items were established by testimony presented to the court in the current case.

There were two witness who testified that they had seen the original will or spoken with Catlin Sr. about the original will. Barnes was also able to testify that he searched Catlin Sr.’s office, the banks, and safety deposit boxes looking for the original copy, but could not produce it. This testimonial evidence proved that the will could not be produced under reasonable diligence.

On appeal, the appeals court affirmed the trial court’s ruling that found that the evidence was legally and factually sufficient to support that the copy produced was a true and correct copy and that the original will could not be produced in court by reasonable diligence.

Establishing the Validity of a Testamentary Trust

This case does not stop there. The dispute also focused on the trust that was provided for in the lost will.

This presents an additional hurdle for the proponent of a copy of a will when they have lost the original will. With testamentary trusts like this, the proponent has to establish the existence and terms of the trust.

In this case, Junior argued that because Doris died before Catlin Sr., the trust mentioned by the will either failed to come into being or it was terminated by her death. If this were found true, then the property designated to go to Junior’s step-siblings would not pass to them.

The court of appeals found, however, that this was not the intention of the will. The court of appeals found that only Doris’ interest in the property and trust was contingent upon her surviving Catlin Sr., but everyone else’s interest in the will affected by the trust was not contingent upon this. Therefore, the court of appeals rejected this argument as well and found that the will did indeed create a testamentary trust. The court concluded that Catlin Sr.’s wife dying before him did not terminate the testamentary trust that Catlin Sr.’s will created.

The Takeaway

When a person’s original will is lost, it can complicate the probate process. This is especially true when the lost will includes language that establishes a testamentary trust. The language used in the trust is crucial and can lead to different outcomes for the distribution of property. This case shows that a lost-will and trust created in the will can be proved up with testimony.

Hire a Probate Attorney in Houston

Do you need help with a probate matter in Houston-metro area or the surrounding communities? At Kreig LLC, we are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call at 281-549-1280 or use the contact form below to see how we can help.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with with lost wills. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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