Introduction
When the original copy of a will cannot be located, Florida law provides a clear process for admitting a copy of the will to probate. However, this process involves navigating statutes, overcoming legal presumptions, and presenting sufficient evidence to satisfy the court. As a probate attorney, I’ve encountered this issue in various cases, and this guide will walk you through the necessary steps to establish a lost or destroyed will in Florida.
Florida Statute 733.207: Proving a Lost or Destroyed Will
Under Florida Statute §733.207, the proponent of a lost or destroyed will must:
- Prove the execution and content of the will by the testimony of one disinterested witness if a correct copy of the will is available.
- If no correct copy is available, prove the contents by the testimony of two disinterested witnesses.
The statute ensures that the court has sufficient evidence to admit the copy of the will to probate while maintaining the integrity of the decedent’s testamentary intentions.
Key Legal Presumptions and Burdens of Proof
When the original will is missing, Florida law presumes that the decedent destroyed it with the intent to revoke. This presumption is well-established in In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980), which states:
“If the original will is unavailable, it is presumed to have been destroyed by the testator with the intent to revoke it.”
Overcoming the Presumption of Revocation
When the original will is missing, Florida law presumes that the decedent destroyed it with the intent to revoke. This presumption is well-established in In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980), which states:
“If the original will is unavailable, it is presumed to have been destroyed by the testator with the intent to revoke it.”
Overcoming the Presumption of Revocation
The burden is on the proponent of the lost will to present competent, substantial evidence to rebut this presumption. This is reinforced in Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1996) and Brennan v. Honsberger, 101 So. 3d 415, 416 (Fla. 5th DCA 2012).
The evidence must establish that:
- The original will was not intentionally destroyed by the testator.
- The will’s execution and contents are valid and accurately reflected in the copy.
In-Court Testimony vs. Affidavits
A critical question arises: is in-court live testimony required, or can affidavits suffice?
Key Case Law
- Brennan v. Brennan (5th DCA)
- The court clarified that affidavits alone were insufficient to satisfy the statutory requirement of “testimony” for proving a lost will.
- Live in-court testimony from at least one disinterested witness was necessary to prove both the execution and the contents of the will.
- Brennan v. Honsberger
- On remand, the court found that while witnesses testified to the execution of the will, neither could verify its contents. This failure to meet the statutory burden resulted in the will being inadmissible.
- In re Estate of Hatten (3rd DCA)
- This case reaffirms the requirement of testimony to establish a lost will. Where the content of the will cannot be corroborated by disinterested witnesses, the will cannot be admitted to probate.
Practical Takeaway
To admit a copy of a will to probate in Florida, at least one disinterested witness must provide live testimony about the execution and content of the will. Affidavits may supplement, but they cannot replace live testimony.
What If You Lost the Original Will After the Decedent Passed Away?
If the original will was lost after the testator’s death, the presumption of revocation does not automatically apply.
In Walton v. Estate of Walton, 601 So. 2d 1266 (Fla. 3rd DCA 1992), the court stated:
“We begin with the presumption that a will which was in the possession of the testator prior to death and which cannot be located subsequent to death was destroyed by the testator with the intention of revoking it.”
This definition implies that if the original will is lost after the testator’s death, there is no presumption that it was destroyed with intent to revoke. Instead, the focus shifts to proving the will’s contents and execution through evidence and witness testimony.
How to Proceed in These Cases
- Establish the Timeline: Prove that the will existed at the time of the testator’s death and was subsequently lost.
- Gather Evidence: Identify witnesses or documentation that confirm the contents and execution of the will.
- Rebut Counterclaims: Address claims from other parties who may argue the will was intentionally revoked.
By addressing these factors, you can build a strong case for admitting the lost will to probate despite its absence.
How to Convert an Interested Witness to a Disinterested Witness
Finding witnesses to testify about a will can be challenging. Wills are deeply personal documents, and their contents are often shared on a strict need-to-know basis. This creates a problem when attempting to identify a disinterested witness who can provide testimony.
The Solution: Waiver of Inheritance
One potential solution is for a beneficiary under the will to waive their inheritance. By disclaiming their interest in the estate, a beneficiary becomes “disinterested” and can serve as a qualified witness.
In Walton v. Estate of Walton, the court stated:
“Frederick Booth, on the other hand, prior to the second hearing, had disclaimed any interest in decedent’s estate. Thus, his testimony is admissible to rebut the presumption of revocation.”
When to Use This Strategy
- Family Cooperation: This approach works best in families where one beneficiary is willing to waive their inheritance for the greater good of ensuring the will’s validity.
- High-Stakes Cases: If no other disinterested witnesses are available, this strategy can be a practical solution to meet the statutory requirements.
Key Considerations
- Legal Formalities: The waiver must be legally valid and properly documented.
- Long-Term Impact: The waiving beneficiary should fully understand the implications of their decision, as it is irrevocable.
Practical Steps for Establishing a Lost Will
1. Identify Interested and Disinterested Parties
- Notify all interested parties, including descendants, parents, or siblings of the decedent.
- Serve formal notice of the petition to establish the lost will, ensuring compliance with Florida probate rules.
2. Overcome the Presumption of Revocation
Gather evidence such as emails or witness testimony.
- Testimony from the proponent of the will (e.g., the person who lost it accidentally).
- Evidence of circumstances indicating no intent to revoke (e.g., an email from the decedent approving the will).
- Testimony from a disinterested librarian or other third party who can verify relevant events.
3. Gather Disinterested Witness Testimony
Identify witnesses who can testify about:
- Execution of the Will: The attorney who drafted the will or witnesses to the signing.
- Contents of the Will: Ideally, the drafting attorney or other individuals familiar with the will’s terms.
Circumstances Surrounding the Loss: Disinterested parties who can confirm that the will was lost accidentally.
- From attorneys, witnesses to the signing, or others familiar with the will.
4. Present Evidence in Court
- Provide live testimony from at least one disinterested witness regarding the execution and contents of the will.
- Supplement testimony with affidavits, emails, or text messages that support the existence and terms of the lost will.
Case Law Analysis
The analysis of the following cases provides valuable insights into the legal requirements for proving a lost or destroyed will:
- Brennan v. Brennan (5th DCA)
- Brennan v. Honsberger (5th DCA)
- In re Estate of Hatten (3rd DCA)
- Walton v. Estate of Walton (3rd DCA)
These cases clarify the standards of evidence, the necessity of disinterested witness testimony, and the limits of affidavits in such proceedings.
Contact Information
If you are dealing with a lost or destroyed will and need expert legal guidance, please contact my office:
Attorney J. O. Valentino
📞 Phone: (305) 634-7790
📧 Email: jo@jovalentino.com
🌐 Website: jovalentino.com/contact
I am here to guide you through this process with expertise and dedication. Let’s work together to ensure your loved one’s wishes are honored.
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