A problem that comes up from time to time is the issue of a lost will. Lost wills are problems because there is a presumption that when a will cannot be found, the testator revoked the will by destroying it. One of the methods by which a will can be revoked is by destroying the original copy of the will. 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. In order to overcome that presumption, 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 was dissatisfied with the will or 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.
In order to probate a lost will, the proponent of the will has to overcome that presumption of revocation as well as prove the contents of the lost will.
The Texas probate code has a section that deals specifically with lost wills and what is required to prove them up (PC §85). A proponent of a written will which cannot be produced in court must prove:
- the requirements for a valid written will to be admitted to probate,e.g.what you would normally have to prove if the will was produced including that it was not revoked,
- the cause of the written will's non-production and that such cause satisfies the court that the will cannot be produced through reasonable diligence, and
- the contents of the will must be substantially proved by a credible witness who has read the will, heard it read, or can identify a copy of the will.
If the proponent of the will proves the three things above, the court will admit a loss will to probate. 324 S.W.3d 257.