Is a photocopy a “written will” for purposes of probate statute?
Tex. Probate Code § 85 requires 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.” Two recent intermediate appellate court cases have taken different approaches on the effect of bringing a photocopy of the will to court. In Garton v. Rockett, 190 S.W.3d 139 (Tex. App. 2005), no petition h., the executor put on the testimony of a witness and the notary, but they admitted that they either did not read the original will or could not recall its contents. Accordingly, the court held that the will was not proved because reading a copy of the will is not a substitute for reading the original will. In In re Estate of Jones, 197 S.W.3d 894 (Tex. App. 2006), petition filed, however, the court held that the statutory requirement does not apply when the court is presented with an exact photocopy of the original will because the copy is a written will produced in court. NO-CONTE
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