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Burden of Proof

Burden of Proof. Statutory Burden PC § 88(b)(3 ); EC § 256.152. Applicant must prove testator did not revoke the will. How prove a negative?. Presumption of Non-Revocation. Ashley v. Usher – p. 181 Source of will “normal” Person to whom testator delivered it, or

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Burden of Proof

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  1. Burden of Proof

  2. Statutory BurdenPC§ 88(b)(3); EC § 256.152 • Applicant must prove testator did not revoke the will. • How prove a negative?

  3. Presumption of Non-Revocation • Ashley v. Usher – p. 181 • Source of will “normal” • Person to whom testator delivered it, or • Among testator’s valuable papers • No suspicious circumstances

  4. Presumption of Revocation • Mingo v. Mingo – p. 185 • Testator possessed will when last seen and it cannot be found after death.

  5. Proof of Lost WillPC § 85; EC § 256.154 • 1. Cause of non-production.

  6. Proof of Lost WillPC § 85; EC § 256.154 • 2. Court satisfied original cannot be produced by reasonable diligence.

  7. Proof of Lost WillPC § 85; EC § 256.154 • 3. Prove contents of will by testimony of someone who: • read the will, • heard the will read aloud, or • can identify a copy.

  8. In re Estate of Catlin, 311 S.W.3d 697 (Tex. App.—Amarillo 2010, pet. denied).

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