Texas Supreme Court Holds That Unsworn Testimony By Attorney Regarding A Lost Will Should Have Been Considered By The Appellate Court By David Fowler Johnson on April 4, 2025 Posted in Cases Decided, Texas Supreme Court In In re Estate of Brown, a charity offered a copy of will to probate. No. 23-0258, 2024 Tex. LEXIS 684 (Tex. August 30, 2024). An attorney offered unsworn testimony regarding the reason for the nonproduction of the original will. The trial court refused to admit the copy, and the court of appeals affirmed. The court of appeals refused to consider the attorney’s testimony because she was not sworn. The Supreme Court reversed. The Court held that, as an officer of the court, the attorney’s testimony is properly considered evidence because her statements were made on the record, without objection from opposing counsel, and where there was no doubt her statements were based on her personal knowledge. The Court further held that, in addition to other testimony, the attorney’s testimony regarding her thorough search of the decedent’s home and safe deposit box established the cause of nonproduction as a matter of law. The Court remanded to the court of appeals to address whether the charity rebutted the presumption of revocation under Section 256.152 of the Code, including, if necessary, the applicable burden of proof when the proceeding is uncontested.
