Original wills go missing all the time. Someone moves into assisted living, a house gets cleaned out, papers get shuffled, and years later the family finds a copy of the will but not the signed original. Texas lets you probate a copy, but you have to prove more than you would with the original in hand.
Two of those extra hurdles come up in almost every lost-will case. You have to show the original can’t be found after a real search, and you often have to overcome a presumption that the person who made the will destroyed it on purpose. But what happens when the key witness to the search talks to the judge without ever being sworn in? Does that testimony count?
That was the question in In the Estate of Myrtle Dell Brown, No. 23-0258, 704 S.W.3d 428 (Tex. Aug. 30, 2024) (per curiam). The Texas Supreme Court had to decide whether a guardian’s unsworn account of her search for a missing will was evidence, and whether that account was enough to prove the original could not be produced.
Facts & Procedural History
In August 2009, Myrtle Dell Brown signed a will leaving everything to her cousin, Annabelle Powell, and naming Powell executor. The two had a falling out after Powell fired one of Brown’s caretakers and allegedly stole from Brown. One of the caretakers told Beverly June Eriks what was going on, and Eriks decided to help Brown after notifying the State Bar.
On October 1, 2009, Brown allegedly signed a new will drafted by attorney John Yow. It revoked all prior wills, left her entire estate to the Humane Society of the United States, and named Eriks independent executor. Brown kept the original.
Shortly after, a former attorney of Brown’s, David Easterling, wrote to the court suggesting Brown needed a guardian. On October 19, 2009, the court appointed attorney Catherine Wylie, first as guardian ad litem. After a December 2009 medical exam found Brown totally incapacitated, Wylie became guardian of her person and estate in February 2010. Wylie concluded that Brown’s caretakers were stealing from her. Brown moved to an assisted living center within a few months and died there in June 2018.
In August 2018, Eriks filed an unopposed application to probate a copy of the October 2009 will, saying the original couldn’t be found and she believed it was accidentally thrown away during the guardianship. In December 2018 the Humane Society filed its own application, also unopposed. Brown’s two potential heirs signed waivers, and the Attorney General declined to participate. Nobody was fighting the will.
At a September 2019 hearing, Wylie told the court that Brown’s caretakers had been stealing from her, that Brown’s papers had clearly been gone through before Wylie searched, and that several people came and went from Brown’s room at the assisted living center. Brown had a history of hiding cash and valuables, but Wylie said her search was so thorough that she “cleared the whole house” and “if there was an original it was not in her home or in the safe deposit box.” At a second hearing that November, Wylie repeated that testimony, and Yow testified that he drafted the will and searched his office for it, even though it wasn’t his practice to keep originals. The transcript never showed Wylie being sworn. No one objected.
The trial court said it “want[s] the Humane Society to get their money too,” but denied the application anyway. Its findings were hard to square. It found that “a diligent search of [Brown’s] home and safe deposit box” took place during the guardianship, yet concluded there was not enough evidence of why the will couldn’t be produced. It also found no proof rebutting the presumption of revocation, calling it “quite possible that [Brown] voluntarily destroyed her own original will.” And relying on Easterling’s letter, which wasn’t even in the record, it suggested the will was not made in good faith.
The Houston First Court of Appeals affirmed. It refused to consider Wylie’s statements because she “was not called as a witness at the hearing, not sworn in as a witness, and not subject to cross-examination.” Without Wylie, there was no proof of a diligent search. So the question for the Supreme Court was simple: was Wylie’s unsworn testimony evidence?
What Do You Have to Prove to Probate a Copy of a Will?
To understand why Wylie’s testimony mattered so much, we first have to look at what Texas requires when the original will is missing.
Every will applicant must prove the testator did not revoke the will. Tex. Est. Code § 256.152(a)(1). When the original can’t be produced, Section 256.156 adds more. The will has to be proved the same way an original would be, and the applicant must also prove “the cause of the nonproduction of a will not produced in court,” which “must be sufficient to satisfy the court that the will cannot by any reasonable diligence be produced.” Tex. Est. Code § 256.156(b)(1). The contents of the will must also be substantially proved by a credible witness who has read the original or a copy, heard it read, or can identify a copy. § 256.156(b)(2).
“Cause of nonproduction” sounds like you have to explain exactly what happened to the will. You don’t. You have to show you looked everywhere it reasonably could be and came up empty. The Court quoted an Amarillo case that put it this way: “It was not necessary for [the proponent] to also show how it was lost such as through the eating habits of a neighbor’s goat, the occurrence of a Kansas tornado, the devastation of a flash flood, or the like.” Courts have found searches of the testator’s home, safe deposit boxes, place of business, and attorney’s office to be reasonably diligent.
The second hurdle comes from case law, not the statute. Texas presumes a person who makes a will wants it carried out. But “when an original will cannot be located and was last seen in the testator’s possession, a presumption arises that the testator destroyed the will with the intent of revoking it.” The logic is that if she had it and it’s gone, she probably got rid of it. The Court called overcoming this presumption a “low hurdle.” Circumstantial evidence pointing the other way can do it, and so can a plausible explanation for the disappearance, like a natural disaster or someone else destroying the will.
These are two different questions. The first asks whether you searched hard enough. The second asks whether the testator herself destroyed the will. You need to win both before a copy can stand in for the original.
How the Court Treated the Guardian’s Unsworn Testimony
The Supreme Court reversed. It held that neither the Estates Code nor the Rules of Evidence required Wylie’s testimony to be sworn under these circumstances, and gave two reasons.
First, Wylie was an officer of the court. As guardian of Brown’s person and estate, she was appointed by and answered to the court, much like a guardian ad litem. The Court relied on a Fort Worth case holding that “[w]hen, during an evidentiary hearing, counsel makes unsworn factual statements as an officer of the court, on the record and without objection from opposing counsel, such statements are properly considered as evidence.” Wylie introduced herself at the hearing as Brown’s guardian, the transcripts listed her as appearing for the ward, and everyone knew who she was.
Second, the Court said its own decision in Banda v. Garcia, 955 S.W.2d 270 (Tex. 1997), didn’t stand in the way. Banda holds that “[n]ormally, an attorney’s statements must be under oath to be considered evidence.” But the oath requirement can be waived when the other side fails to object and knows or should know an objection is needed. Unsworn statements can count when it’s clear the attorney is offering evidence from personal knowledge. Wylie searched the house herself, so her knowledge was firsthand, and everyone in the courtroom understood she was explaining why the original couldn’t be found.
The court of appeals had said Banda didn’t fit because the case was uncontested, so there was no opponent who could waive the oath by staying quiet. The Supreme Court disagreed. The trial court itself was testing whether the application was good enough, and it never ruled at the hearing that Wylie’s testimony was inadmissible. That meant the Humane Society never had a chance to fix the problem by putting Wylie under oath. Texas law favors giving parties an opportunity to cure procedural defects, so Wylie’s testimony should have been considered.
Once Wylie’s testimony was in, the case on the search was over. Her search of the house and safe deposit box, plus Yow’s search of his office, matched searches other Texas courts have found reasonably diligent. Nothing contradicted them, and the trial court had found a diligent search took place. The trial court’s conclusion that the evidence was insufficient conflicted with its own finding. The Supreme Court held the Humane Society proved the cause of nonproduction as a matter of law, even assuming the burden was a preponderance of the evidence. It left open what burden of proof actually applies in an uncontested case.
The Court did not decide whether the Humane Society overcame the presumption of revocation. The court of appeals never reached that question, so the Supreme Court sent the case back for it to decide in the first instance. One detail may matter on remand: the Court noted that once Wylie became guardian of Brown’s person and estate in February 2010, Brown was left “unable to revoke a will unilaterally.”
The Takeaway
Brown means a guardian’s unsworn account of a will search can be evidence in an uncontested probate hearing when the guardian’s role is clear on the record, she is speaking from personal knowledge, and nobody, including the court, objects or rules it out. A good search shouldn’t be thrown away because someone forgot to swear in the witness.
But don’t plan on needing this case. It took six years and a trip to the Supreme Court to get this far, and even then the will was not admitted. The case went back down for more litigation. If you are probating a copy of a will, swear in every witness, including the guardian or attorney who did the search. Document the search: where you looked, who looked, and when. Have the drafting attorney testify about his own files. And come ready to deal with the presumption of revocation, especially if the original was last in the testator’s hands. Evidence that others had access to her papers, that she was incapacitated, or that she was being exploited can go a long way.
Our Corpus Christi Probate Attorneys provide a full range of probate services to our clients, including helping with probating a copy of a lost will and proving a diligent search for the original. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience that we can use to support and guide you with probate and estate matters. Call us today for a FREE consultation.
Disclaimer
The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.
