In re Estate of Capps

In In re Estate of Capps, 154 S.W.3d 242, 245 (Tex. App.--Texarkana 2005, no pet.), there was testimony that, despite a thorough search of the decedent's house, the original will could not be located. 154 S.W.3d at 244. The decedent "kept in the house a metal box that typically contained her important records and, though that box was found and searched, the will was not found there, either." Id. Two separate photocopies of the will were produced in court. Id. The court held that "the material evidence was sufficient to overcome the absence of the original will, since the material evidence sufficiently (A) showed the cause of nonproduction and (B) showed the will was not revoked (and rebutted the presumption that it was)." Id. In that case, the evidence illustrated that the testator executed her will, kept the original, and provided a copy of it to someone for safekeeping with church records. The copy was placed in a locked file cabinet. After Capps died, a search was undertaken for the original. Its scope encompassed her house and a metal box in which she normally retained important documents. The original was never found. When asked if such evidence satisfied the requirements of 85 of the Probate Code, the panel in Capps said yes. Id. at 244-45.