WILL CHALLENGE IN PROBATE LAWSUIT: WAS THE WILL REVOKED BEFORE DEATH? STEPMOTHER VS. STEPCHILDREN FIGHT OVER WILL THAT DISAPPEARED
Q: Who wins a #willchallenge if one side is saying a will was revoked and the other wants the will admitted to probate ? And the will disappears ?
A recent Texas case, whose legal opinion was issued by the court just days ago, deals with #probatelitigation and a #willchallenge. The issue for the #probatecourt was whether the evidence at the #probatecourt which heard the #estatelitigation was sufficient when it ruled that the will had been revoked. And what about that legal presumption in #probatecourt about #revokedwills ?
PROBATE OF WILL WAS DENIED — will was revoked prior to death
A will was submitted to probate and the #probatecourt denied the request to #probatethewill. No probate ! No last will !
Q: had the original last will been revoked during life ?
The appeals court sided with the #probatecourt: the #lastwill was revoked !
THIRD WIFE, 8 STEPKIDS AND LOTS OF #INHERITANCELITIGATION
Floyd was on his third wife when he died in 2007. His last marriage was for 30 years. He had no children with his third wife. BUT he had 8 children from prior relationships.
- Floyd signed a will on February 16, 2000.
- His daughter was #estateexecutor.
- The house went to his third wife-the #estatewidow or #survivingspouse
- His money the rest of his estate went to his 8 children
LAST WILL DISAPPEARS — PRESUMPTION OF REVOCATION — WAS THE #WILLREVOKED ?
Floyd kept the will in a #safedepositbox. After his death, it wasn’t there. Only Floyd and his daughter had access.
The #probatecourt found that the daughter, after a #probatetrial, had not overcome the #presumptionofrevocation.
Many states have a legal presumption about #wills and #probates. If the person who died had a will, and the #lastwill can’t be found after death, you can’t #probatethewill UNLESS you overcome a legal presumption that he revoked the will.
In this case,
- the daughter did not overcome that legal presumption about the #lastwill.
- The #probateevidence fell short.
- The will was NOT admitted to probate.
WHAT IS THE PRESUMPTION THAT THE WILL WAS REVOKED IF YOU CAN’T FIND IT ?
You need to prove, with evidence:
- There was a validly executed will
- last seen in the possession of the decedent
- or in a place where the decedent had ready access to it,
- the will cannot be found after searching for it.
If those facts exist, then many #probatecourts and #probatelitigators know that a presumption arises that the testator destroyed the will with the intent of revoking it.