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Click here for the full text of this decision FACTS:Appellant, Sid Garton, challenges the trial court’s entry of a judgment notwithstanding the verdict in favor of appellees, Linda Poe Rockett, Belinda Baker, Jake Bennett, Mary Brigman, Johnny Poe, Bryan Wallen, Mark Poe and Scott Baker, in a will contest regarding the Estate of Cullen Benton Poe III. In four issues, Sid contends that the judgment notwithstanding the verdict should be reversed and a judgment consistent with the jury’s verdict should be rendered because there was more than a scintilla of evidence to support the jury’s findings that 1. the purported will was executed by Cullen with all the formalities and solemnities to make it a lawful and valid will; 2. the contents of the purported will were substantially proved by the testimony of a credible witness who had read the will or heard it read; 3. Cullen did not revoke the purported will; and 4. Sid filed the proceeding to probate the purported will in good faith and with just cause. HOLDING: Texas Probate Code �85 provides that the contents of a written will that cannot be produced in court “must be substantially proved by the testimony of a credible witness who has read it or heard it read.” “While it is not necessary to establish all of the contents of an alleged lost will literally or verbatim, it is necessary to establish its material contents with some degree of certainty in order to be able to pass title to the property devised and such is particularly true of land.” Cason v. Taylor, 51 S.W.3d 397 (Tex. App. – Waco 2001, no pet.) (citing Harris v. Robbins, 302 S.W.2d 225 (Tex. Civ. App. – Amarillo 1957, no writ)). “The statutory requirements for substantial proof of the contents of an alleged lost will have not been satisfied so long as the court is left in confusion about the real provisions of the will or how to vest title to the property involved.” Though other courts have permitted a proponent of a will to refer to a copy of a will when seeking to probate a “written will not produced in court,” these cases merely establish that, in certain circumstances and absent certain objections by a contestant, a copy of a will may be probated; they do not establish, as Sid suggests, that if there is a purported copy of a will, �85′s requirement of proving the contents of the “written will not produced in court” can be satisfied by simply reading the “readily ascertainable” contents of the copy. There was no evidence supporting the jury’s finding that the contents of the will were substantially proved by the testimony of a credible witness who read the will or heard it read. The court holds that the trial court did not err in granting appellees’ judgment notwithstanding the verdict with respect to Sid’s application to admit the copy of the will to probate. Sid contends that there was more than a scintilla of evidence to support the jury’s finding that Sid filed his application to probate the purported will in good faith and with just cause. Sid asserts that appellees offered no evidence supporting their allegations that Sid was aware that the copy of the will was not Cullen’s last will and testament and that he was not honest when he presented the trial court with the copy of the will. Appellees counter that Sid’s testimony was “replete with internal inconsistencies” and diverged from Kitty’s testimony and that “no reasonable jury” could have found the copy of the will was a true and correct copy of a will that Cullen had executed. The court holds that there was more than a scintilla of evidence supporting the jury’s finding that Sid filed his application to probate the will in good faith and with just cause. The court holds that the trial court erred in granting appellees’ judgment notwithstanding the verdict with respect to Sid’s request for an award of attorney’s fees, consistent with the stipulation of the parties, under �243 of the Probate Code. OPINION:Jennings, J.; Nuchia, Jennings and Higley, JJ.

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