Supreme Court of Texas
                           ══════════
                            No. 23-0258
                           ══════════

           In the Estate of Myrtle Dell Brown, Deceased

   ═══════════════════════════════════════
              On Petition for Review from the
       Court of Appeals for the First District of Texas
   ═══════════════════════════════════════

                            PER CURIAM

      Justice Lehrmann did not participate in the decision.

      This case involves the Humane Society of the United States’
uncontested application to probate a copy of decedent Myrtle Dell
Brown’s will executed in October 2009, which named the Society her sole
beneficiary. Although the application was uncontested and the trial
court found that a reasonably diligent search for the original will
occurred, the court nonetheless reached the contrary conclusion that the
Society failed to establish the cause of nonproduction and denied the
application. The court of appeals affirmed, holding that on-the-record
testimony from Catherine Wylie—an attorney and the guardian of
Brown’s person and estate before her death—could not be considered
evidence because the record of the hearing did not show Wylie was sworn
as a witness. The court of appeals therefore did not consider whether
the Society had shown any of the Estates Code’s other requirements for
proving up a copy of a will, including whether the Society sufficiently
overcame the presumption of revocation that attaches when the original
will is missing and was last seen in the decedent’s possession.
      We hold that neither the Estates Code nor the Rules of Evidence
required Wylie’s testimony to be sworn under these circumstances. The
court of appeals therefore erred in refusing to consider Wylie’s
testimony, which we hold was sufficient as a matter of law to satisfy the
Estates Code’s requirement that the applicant establish the cause of
nonproduction. We therefore reverse the court of appeals’ judgment.
Because the court of appeals did not address whether the Society
overcame the presumption of revocation, we remand for that court to
consider the question in the first instance—including, if necessary, the
applicable burden of proof for showing nonrevocation when the
proceeding is uncontested.
                              BACKGROUND

      The following facts are drawn from the Society’s pleadings and
evidence presented at the trial court hearings, which we view in the light
most favorable to the Society. 1 Where applicable, we note whether a
particular fact is contested or stems from documents or evidence not
included in our record on appeal.
      In August 2009, Myrtle Dell Brown signed a will naming her
cousin, Annabelle Powell, executor and sole distributee of her estate.
Brown and Powell subsequently had a falling out because Powell fired


      1 See Natividad v. Alexsis, Inc., 

 (Tex. 1994).




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one of Brown’s caretakers and allegedly stole from Brown.              One of
Brown’s caretakers told Beverly June Eriks about the situation, and
Eriks decided to help Brown after notifying the State Bar.
       On October 1, 2009, Brown allegedly made the new attested will
at issue here, which was drafted by attorney John Yow. The October
2009 will revoked all prior wills, named the Society sole distributee of
her estate, and named Eriks independent executor.               The original
October 2009 will was in Brown’s possession after signing.
       Shortly after the October 2009 will’s signing, David Easterling, a
former attorney of Brown, wrote a letter to the trial court suggesting the
need for guardianship. 2       The trial court opened a guardianship
proceeding and appointed attorney Catherine Wylie as Brown’s
guardian on October 19, 2009. 3           Wylie concluded that Brown’s
caretakers were stealing from her. According to the trial court, Brown
also told guardian Wylie that Eriks was stealing from her, but there are
no details underlying this allegation in our record. Within a few months,
Brown moved to an assisted living center, where she passed away in
June 2018.
       In August 2018, Eriks filed an unopposed application to probate
a copy of Brown’s October 2009 will, in which she states that the original



       2 A copy of this letter is not included in the appellate record but is
referenced in the hearings below and by the trial court in its findings of fact
and conclusions of law.
       3 The court initially appointed Wylie as a guardian ad litem.  After a
December 2009 medical examination determined Brown was totally
incapacitated, Wylie was appointed as the guardian of her person and estate
in February 2010, which left Brown unable to revoke a will unilaterally.



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will could not be located and that she believed it had been accidentally
disposed of during the guardianship. 4 At the trial court’s direction,
Wylie then filed an Application for Determination and Declaration of
Heirship in December 2018. That same month, Eriks moved the court
to reconsider and objected to an heirship determination, and the Society
filed its own application for probate, which was unopposed. The Society
also filed a jury demand, requesting a trial by jury of any contested
matter.
       The trial court held a hearing on the applications by Eriks and
the Society in September 2019, and Wylie gave possibly unsworn
testimony 5 that Brown’s caretakers were stealing from Brown, that
Brown’s papers and belongings were disordered and had clearly been
gone through before Wylie searched for the original will, and that Brown
was very easily exploited. Wylie also observed that several people had
access to and frequently entered and left Brown’s quarters at the
assisted living center.     Although Brown had a “history of hiding”
valuables such as cash, Wylie explained that her search for Brown’s
original October 2009 will was so thorough that she “cleared the whole
house” and “if there was an original it was not in her home or in the safe
deposit box.” The trial court stated that it “want[s] the Humane Society



       4 Brown’s two potential heirs signed waivers under Texas Estates Code

Section 258.051(c), relinquishing their right to notice of any further
proceedings regarding the admission to probate of any will of Brown’s. The
Attorney General also filed a waiver declining to be a party to the proceeding.
       5The Society acknowledges that “the transcript fails to reflect that
[Wylie] was present as a witness, not counsel,” but nonetheless maintains
Wylie “was in fact sworn in at the beginning of the proceeding.”



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to get their money too,” but it ultimately refused to probate a copy of the
October 2009 will, rejecting the proponents’ insistence that “[t]hey
probate copies [of wills] every day in every court.” Despite the case’s
uncontested nature, the trial court denied the application for probate.
      In November 2019, the Society filed a motion to reconsider and
for new trial, and the trial court held a hearing on the motion that same
month. Wylie again provided unsworn testimony that she searched
Brown’s safe deposit box and “cleared the whole house” in the course of
searching for the will. No one objected to Wylie’s not being sworn in on
the record. John Yow also testified that he had drafted the October 2009
will and unsuccessfully searched his office for the will even though it
was not his practice to keep originals.
      The trial court denied the motion to reconsider and later issued
findings of fact and conclusions of law at the Society’s request. Despite
finding that “a diligent search of [Brown’s] home and safe deposit box”
took place “during the guardianship,” the trial court concluded “[t]here
was not sufficient evidence as to the cause of nonproduction of the
October 1, 2009 Will” under Texas Estates Code Section 256.156. The
trial court also observed that “[a]n original Will’s absence creates a
rebuttable presumption of revocation” that can be “overcome by proof
and circumstances contrary to the presumption.” Finding that no such
proof was presented, the trial court concluded “[t]here was not sufficient
proof to show non-revocation of the October 1, 2009 Will,” and stated it
was “quite possible that [Brown] voluntarily destroyed her own original
will,” as “[n]o evidence was given or produced to contradict” that
possibility. In reaching this conclusion, the trial court noted that “the




                                    5
Will executed immediately prior to this Will was revoked within two
months of creation.”
       Finally, relying exclusively on the letter from Brown’s former
attorney Easterling that is not in the record, the trial court stated “[t]he
suspicious nature of the actions drew the possibility and conclusion that
said Will was not done in good faith.” The trial court did not include any
findings or conclusions regarding other applicable requirements under
the Estates Code, such as whether Brown had sufficient testamentary
capacity at the time the October 2009 will was executed. 6
       The Society appealed the trial court’s order denying its
application for probate 7 and the court of appeals affirmed, holding the
Society failed to show as a matter of law that the original October 2009
will could not be located after a reasonably diligent search.
___ S.W.3d ___, 

, at *9 (Tex. App.—Houston [1st
Dist.] Dec. 20, 2022). The court applied an abuse-of-discretion standard
of review, under which the “legal and factual sufficiency of the evidence


       6 The trial court also concluded that because the October 2009 will was

not admitted to probate, the Society had no standing. But the Society
unquestionably has a pecuniary interest that is affected by whether the will is
probated, so it continues to have standing to challenge the trial court’s denial
of its probate application. See In re Est. of Johnson, 

, 60 (Tex.
2021).
       7 Generally, appeals may be taken only from final judgments, but
“probate proceedings are an exception to the ‘one final judgment’ rule.”
De Ayala v. Mackie, 

 (Tex. 2006). A probate order is
appealable if it “dispose[s] of all parties or issues in a particular phase of the
proceeding.” 

. Applying this exception, courts have held that an
order denying an application to probate a will is appealable. E.g., Cherry v.
Reed, 

 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref’d
n.r.e.).



                                        6
are not independent grounds for asserting error, but they are relevant
factors in assessing whether the trial court abused its discretion.” Id. at
*6. The court noted that under a factual sufficiency review, the party
must show “that the adverse finding is so against the great weight and
preponderance of the evidence as to be clearly wrong and unjust.” Id.
         Using this standard, the court of appeals affirmed the trial court’s
conclusion that there was insufficient evidence regarding the cause of
nonproduction, refusing to consider Wylie’s statements at the hearings
because Wylie “was not called as a witness at the hearing, not sworn in
as a witness, and not subject to cross-examination.” Id. at *8 (citing
Banda v. Garcia, 

 (Tex. 1997)). For these reasons,
the court of appeals held the trial court did not abuse its discretion in
denying the Society’s application to probate a copy of the October 2009
will. The court thus did not reach the questions whether the Society
overcame the presumption of revocation or whether the will was made
in good faith.
         The court of appeals also held the Society failed to preserve its
complaint about not receiving a jury trial because it participated in the
probate hearings without objecting or “otherwise affirmatively
indicat[ing] that it intends to stand on its perfected jury trial right.” Id.
at *9.     The court further characterized the Society’s position as
inconsistent     because   the   Society   emphasized     the   proceeding’s
uncontested nature yet argued the trial court erred in denying it a jury
trial even though the statute permitting a jury trial in probate court is




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reserved for contested cases. Id. at *9 n.10 (citing TEX. EST. CODE
§ 55.002). 8
       The Society filed a petition for review, which raises four issues:
(1) whether the applicant in an uncontested probate proceeding must
prove the cause of nonproduction by a preponderance of the evidence;
(2) whether the court of appeals erroneously ignored Wylie’s unsworn
testimony regarding nonproduction; (3) whether the trial court erred in
concluding the Society presented no evidence rebutting the presumption
of revocation; and (4) whether the court of appeals erred in concluding
the Society waived any right to a jury trial. We begin our analysis with
the second issue, which was the principal focus of the court of appeals’
opinion.
                                 ANALYSIS

       All applications to probate a will must meet certain requirements,
which include establishing that an original will was not subsequently
revoked. TEX. EST. CODE § 256.152(a)(1). Two additional requirements
apply when an original will is not produced in court. 9            First, the
applicant must prove the cause of nonproduction. Id. § 256.156(b)(1).



       8 We note this proceeding occurred in a county court at law, not a
probate court. Thus, this statute—which provides for a jury trial in a
“contested probate . . . proceeding in a probate court”—does not apply. TEX.
EST. CODE § 55.002; cf. Davis v. Davis, 

 (1870) (addressing
constitutional right to jury trial of contested fact issues in probate
proceedings).
       9 Applicants to probate an attested will not produced in court must also

show the requirements listed in Section 256.153. See TEX. EST. CODE
§ 256.156(a). These requirements were not addressed by the trial court or
court of appeals but may be considered on remand.



                                      8
Second, if the will was last seen in the testator’s possession or in a place
to which she had ready access, the applicant must overcome a rebuttable
presumption that the testator revoked the will. See In re Est. of Glover,

 (Tex. 1988); Woods v. Kenner, 

(Tex. App.—Houston [1st Dist.] 2016, no pet.).
       To prove the cause of nonproduction of the will, an applicant must
present evidence “sufficient to satisfy the court that the will cannot by
any reasonable diligence be produced.” TEX. EST. CODE § 256.156(b)(1).
Although applicants are not required to prove exactly how the original
will was lost, they must demonstrate the will could not be found after a
reasonably diligent search. E.g., Est. of Catlin, 

(Tex. App.—Amarillo 2010, pet. denied) (“It was not necessary for [the
proponent] to also show how it was lost such as through the eating
habits of a neighbor’s goat, the occurrence of a Kansas tornado, the
devastation of a flash flood, or the like.”). There is no single correct
method to conduct a reasonably diligent search for a will; courts have
held that searches broad enough to include safe-deposit boxes and other
places where the will would likely be found are sufficient. 10
       Because “[t]he mere making of a will . . . creates a presumption
that the testator intended to dispose of h[er] entire estate, and that [s]he


       10 See In re Est. of Standefer, 

 (Tex. App.—Eastland

2015, no pet.) (searching lockbox and office of decedent’s bookkeeper
constituted reasonably diligent search); Catlin, 

(searching testator’s home, safe-deposit boxes, place of business, and attorney’s
office constituted a reasonably diligent search); In re Est. of Capps, 

 (Tex. App.—Texarkana 2005, no pet.) (searching locked filing
cabinet, testator’s house, and metal box where she stored important papers
constituted reasonable diligence).



                                       9
did not intend to die intestate,” 11 courts apply a presumption of
continuity or nonrevocation when an original will is produced in court
without mutilation or when the will can be traced to the hands of
someone other than the testator. Harkins v. Crews, 

(Tex. App.—San Antonio 1995, writ denied).           Conversely, “when an
original will cannot be located and was last seen in the testator’s
possession, a presumption arises that the testator destroyed the will
with the intent of revoking it.”       Woods, 

.          But
overcoming the presumption of revocation is a low hurdle because it may
be rebutted with circumstantial evidence “contrary to the presumption.”
Id.; see also In re Est. of Capps, 

 (Tex. App.—
Texarkana 2005, no pet.). The presumption may also be rebutted with
a plausible explanation for the will’s disappearance, such as through
natural disaster or fraudulent destruction. See In re Est. of Standefer,

 (Tex. App.—Eastland 2015, no pet.).
       In this case, the court of appeals’ decision turned on the first
requirement: whether the Society proved the cause of nonproduction.
We hold the court of appeals erred by not viewing Wylie’s unsworn
testimony as evidence and concluding the Society failed to carry its
burden on this requirement. Wylie’s statements are evidence for two
reasons.
       First, as guardian of Brown’s person and estate, Wylie is an
officer of the court. Cf. Am. Gen. Fire & Cas. Co. v. Vandewater, 

, 493 n.2 (Tex. 1995) (“A guardian ad litem is not an attorney


       11 Shriner’s Hosp. for Crippled Child. of Tex. v. Stahl, 

 (Tex. 1980).



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for the child but an officer appointed by the court to assist in properly
protecting the child’s interests.”). And “[w]hen, during an evidentiary
hearing, counsel makes unsworn factual statements as an officer of the
court, on the record and without objection from opposing counsel, such
statements are properly considered as evidence.” Rasco v. Ducars Inv.,
LLC, No. 02-21-00375-CV, 

, at *8 n.3 (Tex. App.—Fort
Worth Sept. 22, 2022, no pet.)
       Here, Wylie made her statements in her capacity as an officer of
the court.   At the first probate hearing, she introduced herself “as
Ms. Brown’s guardian for a number of years,” and the hearing
transcripts themselves list her appearances as “for the ward” and
“guardian of Myrtle Dell Brown.” The parties were also aware of Wylie’s
status as guardian. 12 As an officer of the court, Wylie’s testimony is
properly considered evidence.
       Second, we disagree with the court of appeals that considering
Wylie’s testimony as evidence would conflict with our holding in Banda
v. Garcia. Banda holds that “[n]ormally, an attorney’s statements must
be under oath to be considered evidence,” but this general rule may be
waived by an opponent’s failure to object “when the opponent knows or
should know that an objection is necessary.” 

. In other
words, an attorney’s unsworn statements may be considered evidence
“when the circumstances clearly indicate that the attorney is tendering


       12 Various statements in the record demonstrate the parties’ awareness

of Wylie’s status as guardian of Brown’s person and estate. At one point, the
Society’s counsel stated that her “goal was to bring in and probate a copy of a
will . . . . All that was found was copies of the will found by Ms. Wylie as the
guardian.”



                                      11
evidence on the record based on personal knowledge and the opposing
party fails to object.” Vaccaro v. Raymond James & Assocs., 

, 491-92 (Tex. App.—Fort Worth 2022, no pet.).
       Here, all parties and the trial court were aware of Wylie’s role at
the probate hearing, yet no one objected to her not being sworn on the
record. There is also no doubt Wylie’s statements were tendered based
on her personal knowledge because she conducted the search of Brown’s
home herself. See Mathis v. Lockwood, 

 (Tex. 2005)
(counsel’s statements “clearly indicated [she] was tendering evidence on
the record based on personal knowledge on the sole contested issue”).
Because Wylie put all relevant parties—and the trial court itself—on
notice that she was attempting to explain the cause of the original will’s
nonproduction, Banda does not prevent consideration of her testimony.
       We recognize, of course, that there was no party opposing the
application for probate. The court of appeals distinguished Banda on
this basis, reasoning that the Society “is not ‘the opponent’ of Wylie’s
comments at the hearing and has not identified ‘the opponent’ who could
have waived the oath requirement in this case.”         ___ S.W.3d ___,

, at *8 n.6. But the trial court itself was testing the
sufficiency of the Society’s application, and the court did not make a
ruling at the hearing that Wylie’s testimony was inadmissible. Thus,
the Society did not have an opportunity to cure any deficiency. See
McLean v. Livingston, 

 (Tex. 2016) (explaining that
Texas law favors allowing parties the opportunity to cure procedural
defects).   Under these circumstances, Wylie’s testimony should be
considered evidence.




                                   12
       When Wylie’s testimony is considered, we conclude that the
Society established the cause of nonproduction as a matter of law.
Wylie’s search of Brown’s home and Yow’s search of his office were on
par with searches held to be reasonably diligent in other cases. 13 No
evidence refutes Wylie’s or Yow’s testimony, and the trial court itself
found that “a diligent search of [Brown’s] home and safe deposit box”
occurred. The trial court’s legal conclusion—that the evidence of the
cause of the will’s nonproduction was insufficient—therefore conflicts
with its own factual finding. Accordingly, even assuming the cause of
nonproduction must be proved by a preponderance of the evidence in an
uncontested proceeding, the Society carried its burden on this
requirement. 14
       The court of appeals therefore should have proceeded to consider
whether the Society rebutted the presumption of revocation. Because
the court did not address that issue, we remand for it to do so in the first
instance. 15


       13 See, e.g., Standefer, 

; Catlin, 

;

Capps, 

.
       14 Deciding the proper burden of proof is unnecessary to our disposition,

but on remand the court of appeals must resolve any issues it did not reach.
In doing so, that court should address the Society’s issue regarding the proper
burden of proof.
       15    The Society also challenges the court of appeals’ reasons for
concluding it was not entitled to a jury trial. But because the Society failed to
obtain a ruling from the trial court rejecting its jury demand, the court of
appeals committed no reversible error in holding that the Society failed to
preserve its complaint. Cf. Browder v. Moree, 

, 423 (Tex. 2022)
(“If a trial court indicates that it will proceed with a bench trial in a case where
a jury demand was timely perfected, a demanding party that still wishes to




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                                CONCLUSION

       We hold the court of appeals erred in refusing to consider Wylie’s
testimony as evidence, which was sufficient as a matter of law to satisfy
the Estates Code’s requirement that the applicant establish the cause of
nonproduction of an original will. Accordingly, without hearing oral
argument, TEX. R. APP. P. 59.1, we grant the petition for review and
reverse the court of appeals’ judgment affirming the trial court’s order
denying the Society’s application for probate. We remand for the court
of appeals to address whether the Society rebutted the presumption of
revocation—including, if necessary, the applicable burden of proof for
such a showing when, as here, the proceeding is uncontested.

OPINION DELIVERED: August 30, 2024




have a jury trial must ensure that the court is aware of the demand. But
neither our procedural rules nor this Court’s decisions require a party that has
obtained an adverse ruling from the trial court to take the further step of
objecting to that ruling to preserve it for appellate review.”). Should the case
be remanded to the trial court, however, the Society would be free to reassert
its jury demand.



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