A Copy of A Will Just Won’t Do: Lessons from American Humane

(Originally published on LinkedIn on March 9, 2023)

American Humane just lost a tough one in an appellate court in Texas.  Myrtle Brown died, unmarried and no children, with an estate of $750,000.  Some years before, she had engaged an attorney to prepare her will, leaving the entire estate to Humane.  The attorney testified that he had given the original to Brown.  A copy of the will was available, but not the ink-signed document.  There was no evidence that Brown had revoked her will or changed her estate plan.  Brown had no spouse or children, only distant relatives. At least one of those relatives waived any right to the estate.  Nonetheless, without the original will, the court effectively presumed that Brown had destroyed the document and awarded the substantial estate to the statutory heirs.

POINT TO PONDER: Although there are reasons for and against a charitable beneficiary retaining an original will, it is always useful for an organization to know where the original is stored.  A charity might consider reminding its “bequest expectancy” donors of the importance of having people know where a will is stored.  Although the Brown court followed black-letter law in making its ruling, one wonders if the result would have been different if Texas had adopted UPC § 2-503 (the harmless error rule).  That enactment provides a court with broad discretion as to what will or won’t qualify as a probate-worthy will.  In some cases, the statute (adopted in various forms in about a dozen states) arguably permits the admission of unsigned memoranda as valid testamentary documents.