I recently wrote in a post that in “Texas, if the executor cannot locate a decedent’s will, the presumption is that the decedent revoked it. This can upset many of the objectives the decedent had and make probate of the estate much more costly.” To be sure, that result is still a distinct possibility, but the Texas Court of Appeals in Amarillo recently threw that presumption into doubt.
The Texas Probate Code provides that a written will which cannot be produced in court must have the cause of its non-production proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced.” In the Amarillo case, the proponent of the will had introduced a copy of it. He explained that he could not find the original even after looking all through the decedent’s home, office, safety deposit boxes at local banks he used and the files of the attorney who drafted the will. The person arguing that the will should be presumed revoked in the absence of the original, claimed these efforts of the proponent were insufficient evidence to overcome the presumption. Somewhat surprisingly, the court concluded that the decedent did not revoke the will submitted for probate and agreed with the proponent. The court stated that the proponent did not have to demonstrate an affirmative reason for why the original could not be located.
But how you prove a copy of a “lost” will is not the only lesson we learn from this case. What if you really want to revoke a will you executed? Can you just tear it up and throw it away? In light of this decision, that might not be wise. Someone who was favorably treated in that will could bring a copy to court after your death and effectively resurrect the old will. The best alternative for ensuring the revocation of your will takes effect is to execute a new will revoking the old will and be sure those who are more favorably treated by the new will are aware of its existence and where the original of it will be stored. If a new will is not going to be executed to revoke the old will, you should at least make a big production of revoking the old will and include plenty of witnesses – and ones that are likely to outlive you and recall the revocation.