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Proving a lost will was not revoked

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One of the problems that arises when probating a lost will is that there is a presumption that the will has been revoked.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court recently had to decide whether the proponent of a lost will had overcome the presumption that the lost will had been revoked.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court said that the statement “… as far as I know and believe…” was insufficient to prove that the will had not been revoked.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.

Comments

8 Responses to “Proving a lost will was not revoked”

  1. Pamala Pospisil
    January 17th, 2011 @ 4:39 pm

    I’m curious what CMS your website is constructed on? It looks actually good and I like all the visitor functions which can be available. Sorry if this is the incorrect place to ask this however I wasn’t certain how one can contact you – thanks.

  2. Robert Ray
    April 14th, 2011 @ 9:30 am

    WordPress for the blog and joomla for the main site.

  3. R. L.
    July 5th, 2011 @ 5:55 pm

    What is the case you are referring to in Texas?

  4. C Nicol
    August 2nd, 2011 @ 3:29 pm

    What if one’s grandparent were to pass away and the only copy of their will was from 1973 which did not state anything about adopting a child and left everything in the estate to charities, since then the grandparent had adopted a child, which is one’s father, but the father has since then passed away, and now one is hoping to somehow gain access to the estate being the only grandchild, instead of losing it to the charities. Is this possible?

  5. Robert Ray
    August 11th, 2011 @ 7:01 am

    If you need to ask a question about a Texas contested inheritance issue, go to our main site. http://www.theProbate.Net, select the contact us tab and ask your question.

  6. Robert Ray
    August 13th, 2011 @ 6:15 pm

    Out main site, http://www.TheProbate.Net has a contact form for questions.

  7. Dannetta Maldonado
    July 1st, 2013 @ 8:49 pm

    What if there is a will, three children and a missing page which presumably refers to one of the children?

  8. Robert Ray
    July 2nd, 2013 @ 7:29 am

    Dannetta, this blog is for current news stories. If you have a question, you should use our main site, http://www.TheProbate.Net, and fill out the contact form. We can only answer questions about Texas cases since every states inheritance laws are different.

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