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In Estate of Dixon

Court of Appeals of Texas, Fourteenth District

January 23, 2014


On Appeal from the Probate Court No. 4 Harris County, Texas Trial Court Cause No. 377, 211

Panel consists of Justices Christopher, Donovan, and Brown.


Tracy Christopher Justice

This is an appeal from an order denying an application to probate a copy of a will. The principal issue is whether the applicant carried her burden of showing that the original will had not been revoked during the life of the testator. We affirm the trial court's judgment that the evidence is legally and factually sufficient to support a finding that the testator revoked his will.


The decedent, Floyd E. Dixon, was married three times in his life. His final marriage lasted over thirty years until his death on July 31, 2007. Floyd had no children with his surviving spouse, Addie Mae, but he did have eight children from his previous relationships.

Floyd executed a self-proved will on February 16, 2000, in which he appointed his daughter, Rosalyne, as independent executrix. In the will, Floyd made a specific bequest of his home on Shotwell Street to Addie. The residue, including certain financial instruments, was left to his children.

Floyd gave Rosalyne a copy of the will during his lifetime, and he secured the original in a safe deposit box. Addie had no access rights to the safe deposit box. Only Floyd and Rosalyne held a key. Upon Floyd's death, the safe deposit box was searched but the original will could not be located. Rosalyne applied to probate a copy of the will, which Addie contested on the basis of revocation. After a full evidentiary hearing, the trial court found "insufficient evidence of circumstances tending to show that the purported will was not revoked." Because Rosalyne had failed to overcome the presumption of revocation, the trial court denied the application for probate. Rosalyne now appeals from this judgment.


The briefing is somewhat unclear, but it appears that Rosalyne has asserted three distinct issues on appeal. First, Rosalyne contends that the trial court erred by applying the presumption of revocation because the presumption was not effectively triggered by the pleadings. Second, assuming that the presumption was properly pleaded, Rosalyne argues that there is no evidence in support of the presumption. Finally, Rosalyne contends that even if the presumption is applicable, the evidence is factually insufficient to support the trial court's judgment that the presumption was not overcome. We address each of these issues in turn.


When a validly executed will is last seen in the possession of the decedent or in a place where the decedent had ready access to it, and the will cannot be found after his death, a presumption arises that the testator destroyed the will with the intent of revoking it. See McElroy v. Phink, 97 Tex. 147, 154, 76 S.W. 753, 753 (1903); Hoppe v. Hoppe, 703 S.W.2d 224, 226 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.). This presumption is rebuttable, however. Under sections 85 and 88 of the Texas Probate Code, which were both effective at the time of judgment, [1] a copy of the will may be admitted to probate if the proponent of the will establishes that the cause of non-production was not the result of revocation. See Tex. Probate Code §§ 85, 88(b)(3). The proponent of the will satisfies this burden if she demonstrates by a preponderance of the evidence that the original will could not be located after a reasonably diligent search. See id. § 85; In re Estate of Glover, 744 S.W.2d 939, 940 (Tex. 1988) (per curiam). There is no requirement that the proponent establish the manner in which the original will was lost. See In re Estate of Catlin, 311 S.W.3d 697, 700–01 (Tex. App.—Amarillo 2010, pet. denied).

Addie affirmatively pleaded that Floyd revoked his last will. In her Second Amended Opposition, she asserted as follows:

The Will filed herein by Applicant, dated February 16, 2000, which purports to be the Last Will and Testament of FLOYD E. DIXON, Decedent, was revoked by Decedent, prior to his death by him destroying, canceling, and/or obliterating the Original Will. The signed copy of that instrument which has been filed by the proponent in these proceedings is of no force and effect. The Original Will was not found among the personal effects ...

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