Unreported / Non-Citable
Background
After Max Harlan Covington died in November 2024, his daughter, Gina Covington Jones, applied to probate a copy of a self-proved 2020 will that left his entire estate to her. She alleged that the original could not be produced through reasonable diligence. Max’s grandson, Robert Nathan Covington, opposed her application and sought probate of a 2017 will that divided the estate equally between Robert and his wife.
The trial court admitted the 2020 will to probate, finding that the cause of the original’s nonproduction had been sufficiently proved and that Max had not revoked the will. Gina testified variously that the original might have been misplaced during Max’s move to a veterans nursing home or stolen by her aunt, but she ultimately said she did not know what had happened to it. She offered no testimony about any search conducted after Max’s death.
The Court’s Holding
The Sixth Court of Appeals held that the evidence was insufficient to establish that the original 2020 will could not be produced after a reasonably diligent search. Although an applicant need not prove precisely how an original will was lost, Texas law requires evidence demonstrating that a reasonably diligent search failed to locate it. Gina’s conflicting theories about whether the will was lost or stolen did not satisfy that requirement because she presented no evidence that she had searched for it.
The court reversed the order admitting the 2020 will to probate and remanded for further proceedings. Because proof of a diligent search and proof overcoming the presumption of revocation are independent requirements, and Gina failed to satisfy the first, the court did not address Robert’s separate challenge concerning revocation.
Key Takeaways
- An applicant seeking to probate a will copy must show that the original could not be found after a reasonably diligent search.
- Speculation that an original will was lost, misplaced, or stolen does not establish reasonable diligence without evidence of efforts to locate it.
- The requirements to explain nonproduction and overcome any presumption of revocation are independent; failure on either requirement defeats probate of the copy.
Why It Matters
The decision underscores that testimony about what may have happened to a missing original will is not a substitute for evidence of an actual search. Practitioners offering a will copy should develop a record identifying where and how the applicant searched, including likely storage locations and persons who may have possessed the instrument.
The ruling also preserves the distinction between proving why an original cannot be produced and proving that the testator did not revoke it. The appellate court resolved only the nonproduction issue, leaving the revocation dispute and other matters for further proceedings on remand.