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.

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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law