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08/09/12 It's The Law: Copy Of Will Can Be Probated

Question:

My dad recently died. We cannot find his original will, but have found numerous copies of it in his desk. Can we probate a copy instead of the original will?

Answer:

Florida courts have long agreed that when a will has been lost or destroyed, the presumption at law is that the testator destroyed it with intention of revoking it. Burden of proving the contrary is on the person seeking to probate the will copy.

Section §732.207 of Florida Statutes addresses probate of a lost or destroyed will. To probate a lost or destroyed will, the specific content of the will must be proved by testimony of two disinterested witnesses or, if a correct copy is provided, it may be proved by only one disinterested witness. But, you will still have to overcome the presumption that your father intended to revoke his will by destroying it.

If there is no opposition to your request to probate, the court is more likely to agree. If there is opposition (which might come from a person who would receive more if the will was revoked than he or she receives under the will) it will be your burden to overcome the presumption that your father revoked the will.

Overcoming the presumption of revocation can be difficult. Nevertheless, many Florida courts have found sufficient evidence.

In one case, the decedent kept important papers in a jar and trunk near her bed. The decedent told her attorney that her will was in a safe place. After her death, two children who had been cut out of her will entered her house and were the first to go in after the decedent's body was removed. A witness entering the decedent's house shortly thereafter found the jar missing, the trunk opened and ransacked, but no will. The decedent's attorney testified that her directions were to leave all of her estate to her son, Albert, and produced a copy of the will he drafted complying with those directions. The court found the evidence that the house had been ransacked by children cut out of the will persuasive in determining the decedent had not intended to revoke the will.

In another case, Florida's Supreme Court found sufficient evidence to overcome the presumption of revocation. In that case, the original will was prepared years prior to the decedent's death. He kept his valuables and important papers in an old safe in his home. When the safe was opened after his death, it was waterlogged and contained "mush," which the court opined was a deluge of papers and documents. The Court determined the "mush" included the original will.

Because these cases invariably involve a change in who gets what, they are hotly contested. Florida Courts have been forced to confirm each element of the statute has been met before allowing probate of a will copy.

What is a "copy" has been contested. In one case, the Supreme Court of Florida reversed the appeals court and held that a preliminary draft was not a "correct copy" within meaning of the statute. In another case, Florida's Supreme Court explained "copy" means a duplicate of an original document, such as a carbon or photostatic copy. It does not have to have the signature of the testator or witnesses, but must be an identical copy of the missing original.

In late 2011, Florida's Second District Court of Appeal was asked if a copy generated from the drafting attorney's computer qualified under the statute. The trial judge ruled that the computer copy was only a draft and did not qualify. The appellate court reversed.

Another contested issue has been who qualifies as a "disinterested witness." One court has explained that an interested person under the Florida Probate Code is a person who may be reasonably expected to be affected by the outcome of the proceeding. Other the other hand, a person is disinterested when he or she is free from bias, prejudice and has no financial interest. The court ruled that persons appointed as personal representative could be disinterested witnesses, provided they did not have a financial interest as a beneficiary under the will.

The bigger problem for disinterested witnesses in lost will cases is the requirement that they have actual knowledge of the content of the will. In most cases, the witnesses do not read the will but merely sign it along with the testator. When the witness admits that he or she did not read the will, the witness cannot testify as to content and the copy cannot be proved.

These cases can be difficult. When probate of a lost will substantially alters distribution of a decedent's estate, the fight is almost guaranteed. Since it sounds like you are early in this process, you are well advised to retain counsel immediately. A good attorney can help you through the mine field of what may prove to be an emotional and expensive legal proceeding.

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