Can a Copy of A Will Be Used if the Original Was Destroyed?
Full Question:
Answer:
A person must have testamentary capacity to make a valid will. This means the will is made while of sound mind, with awareness of the person's assets and potential heirs, and free from coercion or undue influence. In Texas, a will must be signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and signed by at least two (2) persons at least 14 years old, each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. If the witnesses don't sign a self-proving affidavit, they may be called to court to testify about the making of the will.
The court will usually only accept the original copy of a decedent’s will, in order to ensure its validity. An authenticated copy of a will can be admitted to probate, but can be a lengthy process, and the copy is not guaranteed to be accepted. The court will require testimony from witnesses as to the validity of the will and the fact that it was not meant to be revoked by the lawyer's destruction. I suggest you contact a local attorney who can review all the facts and documents involved.
Please see the following TX statutes:
§ 85 PROB. CODE. Proof of Written Will Not Produced in Court
A written will which cannot be produced in court shall be proved in the
same manner as provided in the preceding Section for an attested written
will or an holographic will, as the case may be, and the same amount and
character of testimony shall be required to prove such will as is
required to prove a written will produced in court; but, in addition
thereto, the cause of its non-production must be proved, and such cause
must be sufficient to satisfy the court that it cannot by any reasonable
diligence be produced, and the contents of such will must be
substantially proved 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.
84 PROB. CODE. Proof of Written Will Produced in Court
(a) Self-Proved Will. If a will is self-proved as provided in this
Code, no further proof of its execution with the formalities and
solemnities and under the circumstances required to make it a valid will
shall be necessary.
(b) Attested Written Will. If not self-proved as provided in this
Code, an attested written will produced in court may be proved:
(1) By the sworn testimony or affidavit of one or more of the
subscribing witnesses thereto, taken in open court.
(2) If all the witnesses are non-residents of the county, or those
who are residents are unable to attend court, by the sworn testimony of
any one or more of them by deposition, either written or oral, taken in
the same manner and under the same rules as depositions taken in other
civil actions; or, if no opposition in writing to such will is filed on
or before the (late set for hearing thereon, then by the sworn testimony
or affidavit of two witnesses taken in open court, or by deposition in
the manner provided herein, to the signature or the handwriting evidenced
thereby of one or more of the attesting witnesses, or of the testator, if
he signed the will; or, if it be shown under oath to the satisfaction of
the court that, diligent search having been made, only one witness can be
found who can make the required proof, then by the sworn testimony or
affidavit of such one taken in open court, or by deposition in the manner
provided herein, to such signatures or handwriting.
(3) If none of the witnesses is living, or if all of such witnesses
are members of the armed forces of the United States of America or of any
auxiliary thereof, or of the armed forces reserve of the United States of
America or of any auxiliary thereof, or of the Maritime Service, and are
beyond the jurisdiction of the court, by two witnesses to the handwriting
of one or both of the subscribing witnesses thereto, or of the testator,
if signed by him, and such proof may be either by sworn testimony or
affidavit taken in open court, or by deposition, either written or oral,
taken in the same manner and under the same rules as depositions taken in
other civil actions; or, if it be shown under oath to the satisfaction of
the court that, diligent search having been made, only one witness can be
found who can make the required proof, then by the sworn testimony or
affidavit of such one taken in open court, or by deposition in the manner
provided herein, to such signatures or handwriting.
(c) Holographic Will. If not self-proved as provided in this Code, a
will wholly in the handwriting of the testator may be proved by two
witnesses to his handwriting, which evidence may be by sworn testimony or
affidavit taken in open court, or, if such witnesses are non-residents of
the county or are residents who are unable to attend court, by
deposition, either written or oral, taken in the same manner and under
the same rules as depositions taken in other civil actions.
(d) Depositions if No Contest Filed. If no contest has been filed,
depositions for the purpose of establishing a will may be taken in the
same manner as provided in this Code for the taking of depositions where
there is no opposing party or attorney of record upon whom notice and
copies of interrogatories may be served; and, in such event, this
Subsection, rather than the preceding portions of this Section which
provide for the taking of depositions under the same rules as depositions
in other civil actions, shall be applicable.
