No type of case is more illustrative of that point than that of a lost will.
Suppose Al dies in a house fire and leaves two surviving children, a son, and a daughter. Al and his son had long been estranged. It was widely known that Al had made a will leaving all of his worldly goods to his daughter and disinheriting his son. Unfortunately, after his death, no one can find the original will.
Texas law presumes that he destroyed the will. Son files an application in probate court asking that he and his sister be declared the heirs of Al’s estate, which would result in son inheriting one-half. (Son serves the ping-pong ball to sister)
Probate litigation is often like a vigorous game of ping-pong.
But the presumption that Al destroyed the will is rebuttable. Sister files an answer alleging that Al kept the original will in a filing cabinet in his house and that the fire burned up all of the documents. (Sister lobs the ball back over the net).
Undeterred, Son says that even if that was true, there is not a copy of the original will. (Brother hits a topspin to sister)
Sister comes up with a copy of the will. (Sister responds with a chop.)
Brother produces an email from Al, dated after the copy of the will, saying that he was sorry about the estrangement and was changing his will to give brother a fair share of his estate. (Brother plays deep.)
Sister brings a 70-year-old priest, who is already a candidate for sainthood and has been twice-cited by the U.S. Supreme Court as the most honest person living or dead in the history of the world, to court. He testifies that he visited Al at his house the day before the tragic house fire, that Al pulled out the original will, that he read it and that sister’s copy was a true and correct copy of the original will and had never been revoked. (Sister kills, game over).
In today’s world of digital images, a will is one of the few types of original documents that must be kept. If it is missing, then the burden is on the proponent to prove two things: a plausible reason why it cannot be produced and its contents.
As to good reasons – proof of a fire or catastrophe can be enough. Other common reasons include the will being removed by a spiteful family member, the decedent suffered from dementia and had thrown out papers without realizing their importance, the will was in the possession of a third party, and the will was removed through theft or vandalism.
The contents of the will must be proved by the testimony of a credible witness who has read the original or a copy of the will, has heard the will read, or can identify a copy of the will.
So take a moment and find your original will. Someday, someone will need it.
Virginia, a 1982 SMU law school graduate, has advised clients for over 35 years. For more information, visit hammerle.com, and for newsletter sign-up, email firstname.lastname@example.org. This column does not constitute legal advice.