Proving a Lost Will Under Texas Probate Code – Change Needed

Charles M. Davis (J.D. Candidate 2008, Texas Tech University School of Law) has recently published his Comment entitled A Lost Will, a Photocopy of the Original, and Two “Snakes in the Grass”: Is It Time to Update Section 85 of the Texas Probate Code?, 40 Tex. Tech L. Rev. 89 (2007).

Here is an excerpt of the conclusion to his Comment:

The Garton decision sheds light on the shortcomings of the witness testimony requirement of section 85 of the Texas Probate Code. Statutes that require the proponent of a lost will to satisfy highly technical requirements can prevent the probate of an otherwise valid will. The requirements under the current version of the Texas statute are not realistic. When a witness is required to testify to the contents of the original document, the witness cannot be expected to recall the details satisfactorily to prove the contents of the decedent’s estate. This mandate is exactly what transpired in the Garton case when the witnesses to Cullen’s will were expected to recall the contents of the document almost thirty years later. The revision to section 85 of the Texas Probate Code suggested in this Comment addresses the shortcomings of the current statute by eliminating the technical requirement of testimony from a credible witness who either read the original will, or heard the original will read.***