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Click here for the full text of this decision FACTS:Betty Spain’s mother, Ruby, died on Sept. 8, 2001, survived by her husband Luther Jones Sr., three adult children from a previous marriage, and several stepchildren. Luther Sr. filed an application to probate Ruby’s will. An anonymous caller informed the court, however, that the will submitted with Luther Sr.’s application was a copy, not an original. The probate court granted Luther Sr.’s oral trial amendment to seek the probate of a will “that is not being produced in Court.” The probate court admitted the will copy to probate and authorized the issuance of letters testamentary. Spain filed a motion to contest. She filed for partial summary judgment, claiming that Ruby’s heirs were not properly served with citation before the will was admitted to probate. The trial court granted Spain’s motion, withdrawing the will and revoking the letters testamentary. Meanwhile, on Jan. 5, 2003, Luther Sr. died. His son, Luther Jr., as executor of his father’s estate, sought to admit the copy of Ruby’s will, dated March 4, 1983, to probate. The copy of Ruby’s will bequeathed all of her “personal items” to her children equally, and then everything else to her husband. She bequeathed her interest in two acres of property in Jasper County to Luther Sr., unless he predeceased her, and then in equal shares to her children and stepchildren. Luther Sr.’s will was executed on the same day and followed the same pattern. The same witnesses and notary public signed both wills. The former legal assistant to the attorney who had drafted both wills identified her signature on both wills as a witness. She explained what the normal procedure would have been before she signed the will and what would have happened afterwards. Though she admitted she did not remember seeing Ruby execute the will, she assumed that Ruby signed the will in her presence as part of the normal process. By deposition, the notary who signed the will stated that she did not remember Ruby or her will specifically, but the notary acknowledged her signature and stated that the format used in the will was familiar to her and that the formalities of a self-proved will appeared to have been observed. Luther Jr. testified that Spain spent the night at Ruby’s house the night she died, and carried away documents and clothes the following day. The next day, Spain and Ruby’s other daughters came to the house with trucks to load up Ruby’s personal belongings because, according to Spain, she “had a will” or “a copy of the will,” and under it, she and her siblings were entitled to Ruby’s personal belongings. Luther Jr. also said that he knew Luther Sr. and Ruby executed wills together and has seen a copy of the provision saying Ruby’s children were to have her personal belongings. He said he was unaware of any revocation, and that he and his father had once looked for Ruby’s will and found what they thought was the original, but which turned out to be a copy. Spain agreed that the signature on the copy was her mother’s signature, that Ruby and Luther had executed wills some 20 years earlier and that she did not know of any revocation or cancellation. She denied knowing the contents of the will or that she told Luther that she had the will or a copy of it. The probate court granted Luther Jr.’s application, concluding, “The lost will dated March 4, 1983 is hereby proven, established and admitted to probate and recorded as the Last Will and Testament of Ruby P. Jones, Deceased.” On appeal, Spain argues that the contents of Ruby’s will were not sufficiently proven by the testimony of a credible witness who had read it or heard it read, as Spain says is required by Probate Code �85. HOLDING:Affirmed. The court first notes that �85 requires that the proponent of a written will that cannot be produced in court must prove: 1. the requirements for a valid written will to be admitted to probate; 2. the cause of the written will’s non-production and that the will cannot be produced through reasonable diligence; and 3. the contents of the will “substantially” by a credible witness who has read the will or heard it read. The court finds that by its findings of fact and conclusions of law, the probate court implicitly found the photocopy in its custody was a faithful, accurate reproduction of a valid original will. The court says the evidence recited above supports this finding. “The circumstances, including Spain’s actions after telling Luther, Jr. she had her mother’s will, indicate the copy offered at trial was the same as the original will. The probate court found the 1983 will had not been revoked.” The court then adds that �85 applies only when a written will cannot be produced, not, as here, where a written will can be produced. The court notes a split among Texas’ appeals court on the issue, but sides with those that would say �85 does not apply under these circumstances. The court says it does not view the “read it or heard it read” requirement in �85 as intending to determine the accuracy of a photocopy of a written will. Instead, the purpose of �85 is to establish the contents of a written will not in the custody of the court and that can only be reproduced by a written order of the probate court based on testimony describing the will’s contents. The testimony to support the order must come from a credible witness who has read the written will or heard it read. “We believe construing section 85 as being inapplicable when an exact photocopy of a valid, unrevoked will is produced in court follows the statute’s plain language.” OPINION:Gaultney, J.; McKeithen, C.J., Gaultney and Horton, J.J.

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