Sometimes after a person dies, a will cannot be found. If there was a will but it just cannot be found, a “lost will” can be probated. For a discussion of the requirements of proving a loss will, click here.
In a case involving a lost will, the Houston Court of Appeals held that a lost will was not proven. In that case, the lost will was allegedly made a few days before the testators died. It left everything to the proponent of the lost will. The proponent said that he had given the will to Davis to keep. Davis testified that she was given a piece of paper, the top part of a greeting card, and that she remembered that it had some words indicating that it was a a will. It also had some signatures on it. She also remembered that it gave the testator’s house and some other property to the proponent. The proponent testified that the testator asked him to type his will, that he typed it and that it was three pages long. He further testified that the testator signed the will in front of witnesses who also signed the will. At the testator’s direction, he gave the executed will to Davis to keep. In refusing to admit the alleged lost will to probate, the court said:
“Davis did not identify the copy of the alleged will produced at trial to be the same document that Cole had given her. Furthermore, the document that Cole produced at trial was typewritten, three pages long, and dated July 16, 2004, whereas the document described by Davis was given to her on May 5, 2004, and was handwritten on a single page torn from a greeting card. Therefore, because Cole failed to present evidence that Davis had possession of the alleged lost will, he did not prove the cause of the will’s non-production as a matter of law…”
So in this case, the proponent did not prove that the will had never been revoked nor did he prove, to the satisfaction of the court, the reason for not producing the original will. If you have a situation where you are sure there was a will but it cannot be found, you can still probate the lost will if you meet the requirements. To insure that everything is handled correctly, you need to contact an attorney as soon as possible and let him advise you on what to do.