Posted on | March 9, 2010 | 8 Comments
I have discussed in another article the procedure for probating a lost will. To review the article, click here.
One of the problems that arises when probating a lost will is that there is a presumption that the will has been revoked. When a will was last known to be in the decedent’s possession and cannot be located after death, a rebuttable presumption of revocation arises. This presumption is based on the fact that one of the methods by which a will can be revoked is by destroying the original copy of the will. If the will can’t be located, it is presumed that the testator revoked the will by destroying it.
In order to overcome the presumption of revocation, the proponent of the will must prove that the testator continued to have affection for the chief beneficiary of the lost will. If the continued affection is proven and there is no evidence to show the decedent’s dissatisfaction with the will or that he had any desire to cancel or change the will, the proof is sufficient for the court to admit the lost will to probate. This assumes of course that the requirements of proving the contents of the lost will have been met.
A Texas appeals court recently had to decide whether the proponent of a lost will had overcome the presumption that the lost will had been revoked. When the proponent offered the lost will for probate, she offered her affidavit that said “…as far as I know and believe, decedent left a will dated August 25, 2004 and never revoked it.” The trial court admitted the will to probate. A son from a prior marriage appealed and the appeals court reversed the case and sent it back to the trial court. The appeals court said that the proponent did not offer any evidence of the testators continued affection for the chief beneficiary.The court said that the statement “… as far as I know and believe…” was insufficient to prove that the will had not been revoked. The affidavit did not positively and unequivocally represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge and were therefore legally insufficient. The appeals court sent the case back to the trial court for additional evidence on this issue.
Pearls of wisdom: If you’re going to file a lost will for probate, you not only have to prove the contents of the lost will but you also have to prove that the will was not revoked.
Every person’s situation is different and requires an attorney to review the situation personally with you.