The loss of a loved one is always a difficult time, but the stress and heartache can be compounded when the original will cannot be located. This leaves the grieving family to navigate the complex probate process with only a copy of the will to rely upon. This gets into questions on how to prove up a will when the will is lost? The Texas Supreme Court recently confronted this issue in In re Estate of Brown, 23-0258 (Tex. Aug 30, 2024), which provides an opportunity to consider how one is to prove up a lost will in Texas probate court.
Facts & Procedural History
The case involves a probate estate in Texas. The decedent is Ms. Brown.
In August 2009, Ms. Brown executed a will naming her cousin, Powell, as executor and sole beneficiary. However, their relationship soured shortly thereafter over allegations that Powell fired one of Brown’s caretakers and stole from her.
In October 2009, Brown executed a new will with the assistance of her probate attorney. This will revoked all prior wills, named the Humane Society of the United States as the sole beneficiary, and appointed Eriks as executor. Brown retained possession of the original signed will.
Within a month, one of Brown’s former attorneys wrote to the court suggesting the need for a guardianship. The court appointed Attorney Wylie as the guardian of Brown’s person and estate. Wylie moved Brown into an assisted living facility where she passed away in June 2018.
Eriks filed an uncontested application to probate a copy of the October 2009 will, asserting the original had been lost. Wylie also filed to determine heirship. The Humane Society then submitted its own application to probate the lost will.
At the probate hearing, Wylie testified, possibly unsworn, that Brown’s home and papers were in disarray when she took over as guardian, and that her thorough search did not uncover the original will. The trial court denied the Society’s application, finding insufficient evidence of the cause of nonproduction and lack of evidence overcoming the presumption of revocation.
The court of appeals affirmed, holding that Wylie’s unsworn statements could not be considered evidence. It did not reach the issue of overcoming the presumption of revocation. The Society petitioned the Texas Supreme Court for review.
What Is Required to Probate a Lost Will in Texas?
The Texas Estates Code sets out two key requirements an applicant must meet to probate a lost will:
1. Prove the cause of nonproduction, sufficient to satisfy the court that the will cannot by any reasonable diligence be produced. Tex. Est. Code § 256.156(b)(1).
2. Overcome the rebuttable presumption of revocation that arises when the original will was last seen in the testator’s possession.
The presumption of revocation is a low hurdle, as it can be rebutted by any competent evidence or circumstances contrary to the presumption. The applicant is not required to prove exactly how the original was lost, but must provide a satisfactory explanation for the will’s disappearance.
Is Unsworn Testimony by a Court-Appointed Guardian Admissible Evidence?
A central issue before the Texas Supreme Court was whether the court of appeals improperly disregarded Wylie’s unsworn testimony about her diligent search for the original will. The Court held that as Brown’s court-appointed guardian, Wylie was an officer of the court.
When an officer of the court makes unsworn factual statements on the record at an evidentiary hearing, without objection, those statements are properly considered evidence. The Court distinguished this from its prior holding in Banda v. Garcia that an attorney’s unsworn statements are not evidence unless the opponent fails to object when an objection is required.
Here, all parties were aware of Wylie’s role as guardian, her statements were clearly based on personal knowledge, and no one objected, so her testimony should have been considered.
Did the Humane Society Prove the Cause of Nonproduction?
Considering Wylie’s improperly excluded testimony, the Court concluded that the Humane Society established the cause of nonproduction as a matter of law. Wylie testified to conducting a thorough search of Brown’s home and safe deposit box, which is comparable to search efforts approved in prior cases.
The trial court even made a factual finding that Wylie performed a diligent search, which conflicted with its legal conclusion that the evidence was insufficient.
On remand, the court of appeals must consider whether the Humane Society rebutted the presumption of revocation, as well as any other unaddressed issues under the Texas Estates Code. But the Texas Supreme Court’s guidance on accepting unsworn testimony and proving the cause of nonproduction will help streamline the process of probating lost wills going forward, providing much-needed clarity for the parties.
The Takeaway
This case provides some clarity on proving up a lost will in probate court. It establishes that unsworn testimony by a court-appointed guardian is admissible evidence and can be sufficient to prove a diligent search to establish the cause of nonproduction. While the presumption of revocation was not at issue here, the Court reiterated the low evidentiary threshold to overcome that presumption. The case highlights when unsworn testimony may constitute evidence based on the speaker’s role and personal knowledge.
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Disclaimer
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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