In In the Estate of Burrell, a trial court admitted a copy of will to probate, and a contestant appealed. No. 09-14-00345-CV, 2016 Tex. App. LEXIS 10421 (Tex. App.—Beaumont September 22, 2016, no pet. history). This case was decided under the Texas Probate Code and not the new Estates Code. The Probate Code required that a proponent of a copy of a will substantially prove the contents of the will by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will. Another requirement was that the proponent of the copy of the will must prove the cause of the will’s non-production and that such cause must be sufficient to satisfy the trial court that the will cannot by any reasonable diligence be produced. The court stated the presumptions applicable to this case as follows:

When an original will is lost but was last seen in the testator’s possession, a rebuttable presumption arises that the testator destroyed the will with the intention of revoking it. The proponent of the copy of the will must overcome this presumption by a preponderance of the evidence. The proponent of the will can overcome the presumption by presenting evidence of circumstances contrary to the presumption or evidence that someone else fraudulently destroyed the will. “The testimony of a witness that, to her knowledge or belief, the testator did not revoke the will has been held sufficient evidence of nonrevocation to support probate of the will.”

The court of appeals described the evidence regarding destruction of the will as follows:

The trial court heard testimony that the decedent placed the will in a fireproof safe along with other legal papers and some old family photographs. Some of the appellants testified that they knew that the decedent had a will and knew that Nance was the only beneficiary under the will. The court heard testimony that the decedent was not in her home before her death, having spent time in a hospital and ultimately passing away in hospice care at a facility in another town. After the decedent’s death, Nance found the fireproof safe at the decedent’s house, but the safe had been left open and had been emptied. Nance testified that she was unable to locate any of the papers that she watched the decedent place in the safe and was unable to find the keys to the safe. Nance testified that she believed finding the safe in this condition was “unusual[.]” There are different inferences that could be drawn from the testimony and evidence, including that someone located the keys to the safe while the decedent was out of her home and emptied the contents of the safe, including the will.

The court affirmed the trial court’s findings that the will proponent met the burden to overcome the presumption of revocation:

There is circumstantial evidence in this record to rebut the presumption of revocation of the decedent’s will. The safe in the decedent’s home was found open with all of its contents removed and the keys missing, after the decedent had been away from the home due to her illness for a length of time…. Moreover, the evidence is undisputed that Nance and her daughter were the decedent’s main caregivers. The evidence also shows that Nance and the decedent continued to have a good, loving relationship up until the decedent’s death. Nance testified that the decedent never told her that she revoked the will or otherwise burned or destroyed it.