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Rebutting the Presumption of Revocation of a Missing Will


Service of Citation: legal notice of the filing of the case to the opposing party.

Restricted Appeal: an appeal of specific aspects of a judgment rather than the judgment in its entirety.

Rule 21 & Rule 21(a), Texas Rules of Civil Procedure: states that any amended pleading must be served on an answering party.

Presumption of Revocation: 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.

Probate Case

In re Estate of Wilson, 252 S.W.3d 708 (Tex. App. 2008)

Facts & Procedural History

Shelli Kay Wilson (Testatrix) filed an application to probate a will and have letters testamentary issued on December 20, 2006. Testatrix and Leslie Wayne Wilson (Decedent) had drafted the will using internet forms. After Decedent’s death, the original will could not be found. Brett Lee Wilson (Appellant) received service of citation on December 23, 3006. On January 3, 2006, Testatrix filed an amended application for probate. Shortly afterwards, the trial court held a hearing and admitted a copy of the will to probate. Appellant did not appear at the hearing, nor did he file a timely contest. Testatrix also testified at the hearing that Appellant had no intention to oppose the application. However, on March 22, 2007, Appellant filed a motion for new trial and an opposition to the probate of the will. Appellant stated that the motion was timely and met the requirements of Rule 306(a) of the Texas Rules of Civil Procedure.

After the trial court denied Contestant’s motion, he appealed. The Court of Appeals reversed and remanded the case back to the trial court. The Court held that: (1) Testatrix was not required inform Contestant of her amended petition to probate the will; (2) the presumption of revocation had not been rebutted through legally sufficient evidence; and (3) the appropriate remedy was not to render judgment, but to reverse the trial court’s judgment and remand the case for further proceedings.

For the first issue, the Court stated that Rule 21 of the Texas Rules of Civil Procedure (which Appellant argued applied to probate proceedings) did not apply to will contests. Therefore, Testatrix was not required to notify Appellant that the application had been amended. For the second issue, the Court determined that the evidence provided (namely an affidavit submitted by Testatrix) was not enough to rebut the presumption because it did not explain why the original will could not be located. For the third issue, the Court stated the decision not to render judgment was proper because Appellant requested a remand in his brief and the facts were not fully developed (since there was no contest to the will’s probate).

Main Considerations

Does a restricted appeal offer the same scope of review as an ordinary appeal?

Yes, such an appeal gives an appellant a review of the entire case. The sole restriction is that the error must be visible within the record. Documents within the record include all papers on file in the appeal, the statement of facts, and the reporter’s record. This means that evidence not provided to the trial court prior to the final judgment may not be included.

What are the requirements of a restricted appeal?

An appellant must show that: (1) within six months of the judgment being issued, they filed notice of the restricted appeal; (2) they were a party to the underlying lawsuit; (3) they did not participate in the hearing that led to the judgment at issue and did not file any post-judgment motions or requests findings of facts or legal conclusions; and (4) the error is reflected within the record.

How to rebut the presumption of revocation?

This presumption can be overcome through: (1) evidence and circumstances suggesting that the testator did not intend to revoke the will or (2) evidence that another person fraudulently destroyed the will. In addition, recognition of a will’s continued validity and the testator’s continued affection for the chief beneficiary under the will (without the existence of evidence showing that the decedent was dissatisfied/wanted to change the will) can rebut the presumption of revocation of a missing original will.

The Takeaway

In re Estate of Wilson shows that, when an appellate court upholds a legally sufficiency issue, the proper remedy is to reverse and remand the case back to the lower court.

Do you need an Experienced Attorney to help you with an evidence issue with a will contest?

If you are contesting a will, one of the issues you may need to deal with is the presumption of revocation. This is the legal principle that says if a will is not found after the person’s death, it is assumed that the person destroyed the will and intended to revoke it.

This presumption can be rebutted, but it takes some effort. You will need to show evidence that the will was not revoked, such as witnesses who saw the person signing the will or testimony about the person’s intentions. An experienced attorney can help you gather this evidence and make your case to the court. Call us today for a FREE consultation. (915) 292-4400.


Related Questions

How much does a will cost?

If you’re like most people, you probably think that a will is something only wealthy people need. After all, why would someone of moderate means need to worry about what happens to their belongings after they die? However, the truth is that everyone can benefit from having a will, regardless of how much they have.

One of the biggest misconceptions about wills is that they’re expensive. While it’s true that you may need to hire a lawyer to draw up your will, it doesn’t have to be an expensive process. In fact, there are many ways to create a legally binding will without spending a lot of money.

If you’re not sure whether you need a will, consider the following benefits:

A will can help ensure that your belongings go to the people you want them to. Without a will, the state decides who gets your things, which may not be who you would have chosen.

A will can help reduce stress for your loved ones during a difficult time. If you die without a will, your family will have to go through the probate process, which can be time-consuming and stressful. Creating a will gives you peace of mind knowing that your affairs are in order.

What is a probate estate?

When someone dies, their estate must go through the probate process. Probate is the legal process of distributing a person’s assets after they die. A probate estate is the collection of all a person’s assets that are subject to probate.

The first step in the probate process is to file a petition with the court to open the estate. The petitioner must be an interested party, such as a beneficiary or heir. Once the petition is filed, the court will appoint a personal representative to oversee the estate.

The personal representative has several responsibilities, including: inventorying and appraising the deceased person’s assets, paying debts and taxes, and distributing the assets to the beneficiaries. One of the most important responsibilities of the personal representative is to locate and produce the deceased person’s will.

If the deceased person left a will, a copy of the will must be submitted to the court with evidence of validity. The court will then determine if the will is valid based on the evidence. If the evidence shows that the will is valid, the court will issue an order admitting the will to probate and appointing the personal representative named in the will.

How to make a will for free?

If you want to make a will but don’t want to pay for an attorney, there are plenty of free resources out there that can help you create your will. Many state governments also have free or low-cost wills programs. You can also try making a will online, but be sure to read the instructions carefully before starting. If you’d like some tips on how to make a will, speak to an attorney professionals about the best way to go about it. Make sure you have a copy of the will in a safe place.

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