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Can you probate a will that has been revoked?

Posted on | August 22, 2009 | No Comments

In some circumstances, the Houston Court of Appeals says you can.

Once a will is revoked, it is revoked. It does not come back to life based on later events. The only way to bring the will back to life is to execute a new will with all of the formalities required by law.

In a case out of Houston, the testatrix executed her first will. A few years later, she had a new attorney draw up a second will which she executed. The second will revoked all prior wills (which would include the first will.) A letter from the new attorney was admitted into evidence that said that the second will had been stolen. The new attorney wrote her a letter telling her that “[i]f the original instruments were stolen, you will need to sign new original copies in order for them to be effective.” The testatrix did not sign new copies but she did hand write a revocation of the second will.

When the testatrix died, the first will was offered for probate. There was no contest so it was admitted to probate. There is a two year statute of limitations to contest a will.

Two years and a few months after the first will was admitted to probate, an application to contest the first will was filed based on the second will and the hand written revocation. They were offered for the purpose of showing that the first will had been revoked. The trial court denied the application. The court held that the second will and the hand written revocation of the second will were not being offered for probate but were being offered to contest the first will. Since more than two years had passed, no contest of the first will was possible.

Another group of heirs then attempted to have the second will admitted to probate. (You can probate a will within four years of the death of the testatrix. They still had time.) The court denied the admission of the second will to probate. The court held that the applicants failed to prove that the second will had not been revoked. (You have to prove a will has not been revoked when you offer it for probate.) The court found that evidence of the will being revoked was that the original was not produced for probate, that the testatrix had advice from counsel that she should execute a new will to replace the lost will and no effort was made to execute a new will. Further evidence that the will was revoked was the writing solely in the handwriting of testatrix revoking the second will.

The court held that the will could not be offered for probate because they could not prove that it had not been revoked. The court said that it was, in reality, offered as a contest of the first will more than two years after the first will was admitted to probate. The court denied the application to probate the second will. 01-07-00733-CV.

This case illustrates again how important it is to take action quickly. Because a will that had been revoked was not contested with the time limits, the contestants lost the ability to challenge it.

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