pjc-family-2024-lib

PJC 230.9

W ILL C ONTESTS

COMMENT

Source. To obtain probate of a will, the applicant must prove that the decedent did not revoke the will. Tex. Est. Code § 256.152(a)(1). Means of revocation are listed in Tex. Est. Code § 253.002. When to use. When the original will is produced in court, a rebuttable presump tion exists that the will has not been revoked, and it is not necessary for the proponent to produce evidence that the will was not revoked. However, if the contestants of the will produce substantial evidence of revocation, the presumption of continuity is rebutted and the proponent must prove that the will has not been revoked. In re Estate of McGrew , 906 S.W.2d 53 (Tex. App.—Tyler 1995, writ denied). Burden of proof. See PJC 230.1 (burden of proof (comment)) concerning the burden of proof before and after a will is admitted to probate. In a will contest instituted before a will has been admitted to probate, the proponent has the burden of proving that the decedent did not revoke the will. See Tex. Est. Code §256.152(a)(1). However, when the proponent of the will establishes that the docu ment has been executed with the requisite formalities of a valid will, a rebuttable pre sumption of continuity is recognized and it is not necessary for the proponent to produce direct evidence of nonrevocation. In re Page’s Estate , 544 S.W.2d 757, 760 (Tex. App.—Corpus Christi–Edinburg 1976, writ ref’d n.r.e.); Usher v. Gwynn , 375 S.W.2d 564 (Tex. App.—San Antonio 1964), aff’d , Ashley v. Usher , 384 S.W.2d 696 (Tex. 1964). If the contestants produce evidence of revocation to cast doubt on the continuity of the will, the presumption is rebutted and the proponents of the will must prove, by a preponderance of the evidence, that the will has not been revoked. Turk v. Robles , 810 S.W.2d 755, 759 (Tex. App.—Houston [1st Dist.] 1991, writ denied). The evidence of revocation must be substantial before the presumption of continuity is rebutted. In re Page’s Estate , 544 S.W.2d at 761. After a will is admitted to probate, the burden of proof regarding revocation is on the contestant. Lee v. Lee , 424 S.W.2d 609 (Tex. 1968). Rewording. In an appropriate case, the instruction should be reworded to reflect the relevant provisions of Tex. Est. Code § 253.002 by replacing the phrase destroying or canceling the will, or by causing it to be destroyed or canceled in his presence with the phrase executing a subsequent document revoking the prior will . If more than one document offered. If more than one document is offered for probate, questions regarding the most recent instrument should be asked before the questions regarding any earlier document. Questions regarding an earlier document should be conditioned on a negative answer to the questions regarding the later docu ment.

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