In Estate of Wilson, the Texarkana Court of Appeals held that an applicant failed to overcome the presumption that a lost will had been revoked.
Section 63 of the Texas Probate Code provides that a testator can revoke a will by physically destroying it. Under Texas law, when a will cannot be located and was last known to be in the testator’s possession, a presumption arises that the testator destroyed the will. The presumption can be rebutted by evidence that the will was not revoked but instead simply lost, or that it was fraudulently destroyed by some other person.
The Court of Appeals found no support in the record to rebut the presumption of revocation. The applicant had filed an affidavit stating, “As far as I know and believe, Decedent left a will dated August 25, 2004 and never revoked.” The Court found that conclusory statement was no evidence to counter the presumption of revocation. The Court did give the applicant a break and remanded the case back to County Court for further proceedings. That will presumably give the applicant another shot at presenting more evidence.