This column presents an actual case, In the Matter of the Estate of Elwin Ross Standefer, Deceased, tried in Ector County, Texas. The case demonstrates the difficulties presented to proponents if the original will cannot be located.

When Elwin S. died in 2014, only a copy (but not the original) of a will he had made in 2012 was found. Elwin was survived by two sons, Randy and Terry, and a daughter, Nedinah. The will bequeathed all Elwin’s property to his sons, none to his daughter. In addition, Elwin did not benefit Wilma, his girlfriend.

Nedinah filed an application claiming that, since the original will could not be found, her father had died intestate.Randy filed an application to probate the copy as a valid, unrevoked will. If Randy prevailed, he and his brother Terry would inherit all Elwin’s property under the will. If Nedinah prevailed, the three children would share the estate equally.

The trial court admitted the copy of the will for probate. Nedinah appealed that determination.

Can a Copy of a Will be Probated as a Valid Will?

When the original will cannot be found, the law assumes that the testator had destroyed it, thereby revoking it. The person proposing that the original is merely lost and not revoked must show evidence stronger than the presumption of revocation.

The proponent of a lost will can overcome the presumption that the testator destroyed the will by entering evidence of circumstances that would indicate the testator did not destroy the will or that someone else destroyed the will fraudulently. In this case, the appellate court said evidence that Elwin “recognized his will’s continued validity and had continued affection for” its beneficiaries, with no evidence he had become dissatisfied with the will or had wished to change it, would be sufficient “circumstances contrary to the presumption.”

Was the Evidence Sufficient to Prove the Copy was the Valid Will?

At trial Elwin’s bookkeeper and accountant, Kathy W., testified that she had prepared the will, that the copy Randy offered for probate was a true and correct copy of it and that she had witnessed Elwin sign the document. She stated that Elwin had taken the will with him after he executed it and that he had never asked her to draft another will. Kathy testified that Elwin had intended to leave nothing to his daughter.

Neither Terry nor Randy had seen their father sign the will. Terry had never seen the will prior to Elwin’s death. Casey D., Elwin’s office manager, had seen an envelope marked “Last Will and Testament” in Elwin’s lockbox, but she had never looked inside the envelope.

Although Nedinah had worked for her father for a time and Elwin had bought a house for her and her husband, the father and daughter had had a falling out approximately five years before the hearing. While there was testimony that Randy and Elwin had had a close and affectionate relationship, Nedinah admitted that she and her father did not. No evidence was presented regarding the nature of Terry and Elwin’s interactions.

The evidence showed that Elwin, Casey and Randy had had access to the lockbox. Significantly, Wilma’s daughter, Tammie W., also had access to the box. Testimony revealed that Tammie had removed a title of an antique car from the lockbox and inserted her name on the title. She returned the title only after having been confronted concerning it. The implication was that, Tammie, having seen the will in the lockbox with no provision made for her mother, had removed the will from the lockbox, when she discovered the will contained no provision for her mother.

Based on all the evidence, the appellate court agreed that the trial court decision that Elwin did not revoke his will was supported by sufficient evidence to uphold its decision.

Was the Will Executed with the Required Formalities?

Elwin’s signed and witnessed will included a self-proving clause. That meant further proof that the will was properly executed was unnecessary unless someone challenged its proper execution. Nedinah claimed that the will wasn’t properly executed because the typed name in the will was “Elwin Ross Standefer” but the signature above the typed name was “Ross Standefer.” She also claimed that the signature was a stamp of Elwin’s signature rather than an original signature.

Stating that Texas courts have been lenient about the form of signatures on wills, the appeals court did not have to match the typed name exactly. Even an “X” or initials have been sufficient.

Kathy’s testimony that Elwin had actually signed his will contradicted Nedinah’s contention that the signature was stamped. The office manager, Casey, testified that Elwin had had a stamp for his signature made, but he had destroyed the stamp in 2010 or 2011, several years before he signed the will.

Evidently, the trial court believed the evidence that Elwin had signed the will outweighed any evidence that he had not. The appellate court accepted that the evidence presented to the trial court was sufficient for the lower court to reach that conclusion.

Take-Away from the Elwin Ross Standefer Case.

Most attorneys advise testators to secure the original will in a safe place and to notify the named executor where it can be found. They don’t always go into the complexity of proof that is required if that original will is misplaced and cannot be found after the testator has died. Elwin’s case makes that clear. It also reveals how the wishes of the testator are placed in potential jeopardy if only a copy is available. Consider this case as a call to action to determine, at the beginning of 2017, that your original will is safe and locatable. Happy New Year.

Sandra W. Reed is an attorney with Katten & Benson, an Elder Law firm in Fort Worth. She can be contacted by phone at (254)797-0211 or by email at swreed2@yahoo.com.