would have inherited assets had Brown died intestate, but that she understood she is to receive nothing because Brown executed a will leaving everything to the Humane Society. The Humane Society also filed a jury demand of any contested matter in the case.
his office but did not have the original as it was his practice to give originals to clients. He testified that he met with Brown more than once, he spoke with her alone regarding her desire for the will, and he would not have let her execute a will if he thought she lacked capacity. The court denied the motion for reconsideration. It entered a number of findings of facts and conclusions of law including a finding that there was not sufficient evidence of the cause of non-production or non-revocation of the will. The Humane Society appealed. Applicable Law Texas law allows a copy of a will to be probated if the original cannot be found. A party seeking to probate a copy, rather than the original, must prove the will in the same manner provided for an attested will or holographic will. The contents of the will must be proved by a credible witness who read either the original or a copy of the will, has heard the will read, or can identify a copy of the will. Additionally, the proponent must also prove “the cause of non-production” of the original will in a manner “sufficient to satisfy the court the will cannot by any reasonable diligence be produced.” The proponent must show by a preponderance of the evidence that the original will could not be located after a reasonably diligent search, but need not establish how the original will was lost.
Probate Hearing
At the hearing on her application, Eriks testified she met Brown when Brown’s caregivers called her to come and help because they “saw irregularities” and kept hearing her talk about wanting to get Powell off the will. Eriks told the caregivers to find a lawyer. Eriks did not know if Brown ever revoked the October 2009 will and had no firsthand knowledge of what happened to the original. She did not think Brown had any reason to dispose of it and testified that Brown tended to keep every scrap of paper. She testified that Brown had a history of hiding and may have hidden the originals. Eriks said she did not look anywhere for the original 2009 will. When asked why Brown would have named the Humane Society as the sole devisee, Eriks testified that Brown was angry at Powell for allegedly stealing from her and that she loved animals and had a precious cat. Both of the witnesses to the will testified that she saw Brown sign the will on October 1, 2009, and she appeared to be of sound mind. The lawyer who prepared the will testified that he would not have had someone sign a will if they lacked capacity.
Appellate Court Opinion
The court denied Eriks’ motion for application of the copy of the 2009 will.
The First Court of Appeals affirmed. [Read Opinion here.]
The Humane Society moved to reconsider, arguing there was sufficient evidence of Brown’s death, timely filing of the application, proper jurisdiction, proper citation, valid execution of the will, testamentary capacity, contents of the non-produced will, reason for non production and non-revocation, and Eriks’ entitlement to serving as executor. The court held a hearing on this motion. The attorney who drafted the will testified that the copy was a true and correct copy of the will Brown executed at his office. The lawyer searched
Non-Production First, the court addressed the issue of non- production of the original will. Although Eriks testified she did not know what happened to the will and that she had no reason to think Brown would have disposed of it, she also testified that she did not search anywhere for the original of the 2009 will. She also offered no testimony that anyone else searched Brown’s house for the original.
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G rowth T hrough E ducat i on - A pr i l / M ay / J une 2024
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