Burden of Proof

Statutory Burden -- § 88(b)(3)

Applicant must prove testator did not revoke the will.

How prove a negative?

Presumption of Non-Revocation

Ashley v. Usher – p. 181

Normal source of will, plus

No suspicious circumstances.

Presumption of Revocation

Mingo v. Mingo – p. 185

Testator possessed will when last seen and it cannot be found after death.

Proof of Lost Will -- § 85

1. Cause of non-production.

Proof of Lost Will -- § 85

2. Court satisfied original cannot be produced by reasonable diligence.

Proof of Lost Will -- § 85

3. Prove contents of will by testimony of someone who:

read the will, heard the will read aloud, or can identify a copy.

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