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Garton v. Rockett, 190 S.W.3d 139 (Tex. App.—Houston [1^st Dist.] 2005, no pet. h.).

Estate Administration

 Lost Wills

Although Executor did not possess Testator’s original will, Executor attempted to probate a copy of the will.  The copy appeared to comply with the requirements of a valid will under Texas law.  The key issue was whether Executor substantially proved the contents of the will through the testimony of a credible witness who either read the will or heard the will read as required by the lost will procedure provided in Probate Code § 85.  The jury determined that Executor had supplied sufficient evidence of the contents but the judge granted Heirs a judgment notwithstanding the verdict.  The appellate court affirmed.

The court examined the evidence and concluded that Executor “failed to offer any testimony concerning the contents of the original will by a credible witness who read the will or heard it read.”  Garton at 145.  Although Executor put on the testimony of a witness and the notary, they admitted that they either did not read the original will or could not recall its contents.  Reading a copy of the will is not a substitute for reading the original will.

Moral:  A proponent of a lost will must prove the contents of the lost will through the testimony of a witness who read the original will or heard the original will read aloud.

Estate Administration

Attorney’s Fees

To Unsuccessful Will Proponent

The named Executor attempted to probate the will.  The jury found that the will was valid and that Executor filed the probate proceeding in good faith and with just cause.  The judge ignored these findings and granted a judgment notwithstanding the verdict.  The appellate court agreed with the trial judge that the evidence did not support the jury’s finding that the will was valid.  However, the court agreed with Executor that he filed the application in good faith and with just cause and thus was entitled to a reasonable attorney’s fee under Probate Code § 243.  The court explained that Executor had presented sufficient evidence to justify the jury’s finding.  The court also pointed out that § 243 does not require that an executor be successful in probating the will to be entitled to a reasonable attorney’s fee.

Moral:  A named executor who attempts to probate a will may recover reasonable attorney’s fees even if the attempt fails as long as the executor acted in good faith and with just cause.

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