When Can You Admit a Lost or Destroyed Will in a Florida Probate Estate?

When a person dies, their will must be located and filed with the probate court. Obviously, this assumes there is a will to find. If the testator–the person who made the will in the first place–destroyed the document before they died, then there is no longer a valid will.

The Need for Witnesses

As a matter of law in Florida, a will that was in the testator’s possession before their death and cannot be located after death is presumed to be a revoked will. It is still possible, however, to establish the existence of a lost will and admit it to probate. This requires the person seeking to admit the will (the petitioner) to prove that the testator did not intend to destroy their will.

Under Florida Statutes 733.207, such proof must include either the testimony of “two disinterested witnesses,” or if a “correct copy” of the will is available, through the testimony of just one disinterested witness.

The witness requirement is essential. Otherwise, anyone could simply show up in probate court and present a copy of what they claim to be a valid will. For example, in a 2007 case, In re Estate of Musil, a petitioner submitted what she alleged was a “copy of the alleged lost will” of a deceased man. This purported will, which was dated more than 20 years before the decedent’s death, named the petitioner as one of the beneficiaries of the estate.

Unfortunately, the petitioner had no witnesses to back up her claims. As the Second District Court of Appeal noted, there was “no other evidence was received by the probate court and that no other witnesses testified” as to the execution of the purported will. As such, the Second District upheld the probate court’s decision to reject the purported will.

Conversely, in a 1992 decision, In Re Estate of Kero, the Fourth District Court of Appeals held that an unsigned carbon copy of a purported will was valid because “the only surviving witness” testified that it was identical to the original signed by the decedent. The Fourth District said this was still a “correct copy” as required by Section 733.207, even though it was missing the signatures of the original will. What mattered was that the witness established the content of the copy was the same as the original.

Contact a Pompano Beach Revoked Will Lawyer Today

Individuals often change their minds when it comes to making or amending a will. But legal disputes can arise over whether a person actually intended to revoke a prior will, as opposed to the will simply being lost or misplaced. An experienced Pompano Beach revoked will attorney can advise you in such cases and represent your interests in court.

If you need to speak with an attorney right away, contact the offices of Mark R. Manceri, P.A., Attorney at Law, today at 954-491-7099 to schedule a consultation.

Sources:

m.flsenate.gov/Statutes/733.207

scholar.google.com/scholar_case?case=4023043510385253071

scholar.google.com/scholar_case?case=2070635126898661623