Is a “lost” Will really lost?

Texas law permits the probate of a “lost” Will.  Imagine the consequences if the State did not allow proof of the lost documents.  A Will might be misplaced simply as a result of an accident, or the Testator might throw away what they believed was their copy because they misunderstood the lawyer would keep one.  When a house burns, the fire rarely destroys everything but the Will.


Other circumstances might not be so accidental.  Plenty of cases involve the willful and intentional destruction of a Will, not by the Testator, but by somebody unhappy with what the document says.  Section 85 of the Texas Probate Code recognizes that the original Will, or even a photocopy, might not always be available.  This reality should not, however, limit or threaten every citizen’s right to make his or her own Will.


If a Will cannot be produced in court, the proponent must put forth a bit more evidence.  In addition to proving that the Will was duly executed, the proponent must show why he or she cannot actually produce the Will.  The court must be convinced that unsuccessful reasonable efforts have been made to produce the document.  Finally, comes the tricky part.  The proponent must prove what the Will said.


In a world of PDFs and photocopies, identifying the contents might be as easy as pointing to a picture or photocopy of the lost Will.  But what about when it’s really really lost?  Witness testimony can be taken from individuals that read the Will themselves or heard about its contents.  Obviously, these cases are fact-specific.  But, so long as the court is not left confused about the real provisions of the Will, or in whom to vest title, these cases can be successful.