What happens when the Decedent’s original Last Will & Testament cannot be found?
It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. In re Estate of Parker, 382 So.2d 652 (Fla. 1980). Often, a family member will have a copy of the Will and will offer it for probate and ask the probate court to admit the Will as if it were an original. Then, the proponent of the lost will (the person offering the copy for probate) has the burden of introducing competent, substantial evidence to overcome the presumption that the will was destroyed by the testator. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996).
The Parker court said that the first step in overcoming the presumption of revocation is by the establishment and admission to probate of the lost or destroyed Will pursuant to Florida Statute §733.207, which states:
“Any interested person may establish the full and precise terms of a lost or destroyed Will and offer the Will for probate. The specific content of the Will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.”
It is fairly easy for a witness to recall the execution of a Will, but what does “specific content” mean? The Fifth District Court of Appeal recently decided Brennan v. Honsberger, 101 So.3d 415 (Fla. 5th DCA 2012) on the issue of establishing a lost Will. In Brennan, there were two Wills at issue: one signed in 2001 leaving the decedent’s estate to his four children in unequal shares, and a second executed in 2002 leaving a home in Canada to a friend with all other assets to the decedent’s brother. The decedent died in 2007 and the Petition for Administration sought to admit the 2001 Will. The decedent’s friend, who stood to receive the house under the 2002 Will, filed an objection to the 2001 Will and a Petition to Establish a Lost Will. Ultimately, the 2002 Will was not admitted because the witnesses, who testified that they witnessed the signing of the Will, had no knowledge of its content and therefore failed to satisfy the statutory requirement that the witnesses testify as to the specific content of the Will.
If you have a question about a lost or destroyed will, call the attorneys at Adrian Philip Thomas, P.A. for a free consultation.
