What do you do if you lost the original copy of a Will or you cannot find the original? What if you can find a copy of the Will? Can you probate a copy of the Will? If you can probate a copy of the Will, how do you go about probating a copy of a Will?
The Estate of Capps, 154 S.W.3d 242 (Tex. App.–Texarkana 2005) provides an opportunity to consider these questions.
Facts & Procedural History
This case involves a case where a copy of a Will was admitted to probate.
The decedent executed the Will and provided a copy to a member of her church and provided another copy to a third party who was likely a friend. The decedent kept the original copy of her Will. When she died, the original copy of the Will could not be found.
The probate court admitted one of the copies of the Will to probate and appointed a personal representative to carry out the terms of the Will.
Two parties challenged the admission of the Will to probate. The court opinion is not clear, but it appears that a family member was one of the parties who challenged the Will.
The appeals court had to decide whether the lower court was correct in admitting the copy of the Will to probate.
Requirements for a Will to be Valid Under Texas Law
A Will is a legal document. It has to be executed with certain formalities to be valid.
Specifically, the Will must be reduced to writing. It has to be signed by the decedent or another person at the direction of the decedent.
The Will has to be signed and attested to by two or more witnesses. The witnesses have to sign their name to the Will in while in the decedent’s presence. The witnesses have to be at least fourteen years old.
The courts regularly enforce these requirements. Deficiencies result in the Will not being admitted to probate. The result is that the decedent is presumed to have died without a Will. That means that Texas law, not the Will, dictates who gets the decedent’s property and who is entitled to serve as the administrator for the estate.
How Do You Prove a Will is Valid?
Most Wills in Texas include a self-proving affidavit. This affidavit is attached to the end of the Will.
The statement includes language that is found in the Texas Estates Code. Basically, this language just affirms that the requirements listed above for a valid Will have been met. The affidavit is signed by the two witnesses and notarized by a licensed notary.
The purpose of this notarized affidavit is to allow the probate court to admit the Will to probate without having the witnesses show up to court.
If the Will does not have a self-proving affidavit (or a valid self-proving affidavit), then one generally has to have two witnesses attend the probate court hearing to verify that the Will is valid. They do this by testifying either that they read the Will and know that it is a true and correct copy of the decedent’s Will or they recognize the decedent’s signature on the Will.
Proving Up a Copy of a Will
This brings us back to the issue in this case. How does one prove up a Will or show that it is valid if only a copy of the Will can be located?
The Estate of Capps case provides the answer. In Capps, the court considered testimony from the two parties who the decedent provided a copy of the Will to. They testified that the Will was a true and correct copy of the decedent’s Will. They testified as to their familiarity with the decedent’s handwriting and identified the handwriting of the Will as hers.
This is very similar to the process of proving up a Will that does not have a self-proving affidavit (or a valid self-proving affidavit).
While it sounds simple, this is often a difficult task. It is often difficult to find third parties who can provide this testimony. It is common for those who are older to not have as many acquaintances who are still living and able to attend court hearings or testify forcefully at those hearings. This is especially true given that they have to testify about a document and/or the decedent’s signature that they may not have seen in writing in several years, if not several decades.
In cases like this, one may even have to enlist a handwriting expert. These experts will often obtain samples of the decedent’s signatures from public records (such as deeds, marriage licenses, etc.) and compare those to the signature on the copy of the Will. The probate attorney can then try to admit the expert testimony or report as evidence that the copy of the Will is valid.
The Estate of Capps case shows that losing an original Will may not be a problem. A copy of the lost Will can be admitted to probate. This is not ideal, however, given the inherent difficulties in probating the copy of the Will. These difficulties can often result in probate litigation it provides an opportunity for family members and others who do not agree with the Will to question the Will. This is why it is important to not only keep an original Will but to make sure that survivors can locate the original copy of the Will.