In In re Est. of Brown, a charity attempted to probate a copy of a lost will. No. 01-19-00953-CV, 2022 Tex. App. LEXIS 9259 (Tex. App.—Houston [1st Dist.] December 20, 2022, no pet. history). The trial court denied the application, and the charity appealed. The court of appeals affirmed. The court first discussed the law regarding lost wills:
A copy of a will may be probated when the original will cannot be found. A party seeking to probate a copy of a will, rather than the original, must prove the will “in the same manner as provided” for an attested written will or holographic will. The “same amount and character of testimony is required to prove the will not produced in court as is required to prove a will produced in court.” The proponent of the will must also prove “the cause of the non[-]production” of the original will in a manner “sufficient to satisfy the court that the will cannot by any reasonable diligence be produced.” The proponent satisfies this burden by showing by a preponderance of the evidence that the original will could not be located after a reasonably diligent search. The proponent need not establish how the original will was lost.
Id. The trial court found that there was not sufficient evidence as to the cause of non-production of the will. The evidence showed as follows:
At the hearing on her application to probate a copy of the October 2009 will, Eriks testified that she did not know whether Brown ever revoked the October 2009 will and she had “no firsthand knowledge” that the original October 2009 will had been accidentally disposed of. Eriks also testified that she did not think that Brown had “any reason” to tear up or dispose of the original October 2009 will, Brown “tended to save every scrap of paper,” and Brown “had a history of hiding.” Significantly though, as to non-production of the original October 2009 will, Eriks testified that she did not search anywhere for Brown’s original October 2009 will, and Eriks did not testify that anyone else searched for Brown’s original October 2009 will.
Id. The court of appeals then ignored statements by an attorney where they were not given under oath:
The Humane Society, in its briefing, points to the statements made during the hearing by Wylie, the attorney who served as Brown’s guardian ad litem and the guardian of Brown’s estate, to assert that “all the evidence demonstrate[d] that the [original October 2009] will could not be found after a diligent search.” …
Significantly, Wylie was not called as a witness at the hearing, not sworn in as a witness, and not subject to cross-examination. She did not offer her comments during the hearing as a witness. An attorney’s unsworn statements are not evidence… We conclude that the Humane Society, on appeal, has failed to show that the evidence establishes, as a matter of law, that the original October 2009 will could not be located after a reasonably diligent search… Thus, we hold that the evidence is legally and factually sufficient to support the trial court’s finding on non-production, and the trial court did not err in denying the application to probate a copy of Brown’s October 2009 will.