Introduction
A lost will is a will that a testator was known to have in their possession but cannot be found after they die.[1]
In Florida, if a will is lost, the presumption is that the will was destroyed by the testator because the testator wished to revoke it.[2] To defeat this presumption, the lost will must be established and subsequently admitted to probate.[3] The requirements for establishment are laid out in the Florida Statutes.[4] The relevant provision provides:
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.[5]
Correct Copies
A copy means a duplicate of the original will, “such as a carbon or photostatic copy.”[6] A correct copy means the copy must be a conventional one.[7]
For example, in the case of In re Parker’s Estate, the Supreme Court of Florida found that a draft of a lost will was not a “correct” copy as required by the Florida Statutes.[8] A draft is not a copy, and what’s more, “[i]t is not ‘correct’ because it is not the approved or conventional way of making a copy . . . .”[9]
Though a “correct” copy of a lost will must be a duplicate of the original, it does not have to literally be an exact copy of the executed version: in the case of Stewart v. Johnson, the Supreme Court of Florida found that a copy of a lost will was a “correct” copy even though the copy lacked the signatures of the testator and the two subscribing witnesses.[10]
The Court found that the purpose of admitting the copy was to prove the will’s contents, not the will’s execution.[11] Proof of the will’s execution can be made through testimony, such as testimony from the drafting attorney and the witnesses.[12]
However, a mere draft can still serve to establish a lost will, provided the testimony of two disinterested witnesses is presented as evidence.[13] Therefore, an interested person could, still establish a lost will without any copy so long as they can produce two disinterested witnesses to testify as to the lost will’s contents.[14]
Lost Electronic Wills
The Florida Statutes were amended in 2019 to include provisions governing electronic wills.[15] The Florida Probate Rules were amended accordingly.[16]
“Wills” are now defined in the Florida Statutes to include electronic wills.[17] These electronic will provisions came into effect in 2020;[18] therefore, not much case law interpreting their scope or application, or electronic wills in general, exists.
The Supreme Court of Florida has found that a correct copy must be a carbon copy or photostatic copy, but, as the Second District Court of Appeals found in 2012, the Supreme Court’s decision was handed down in 1980, before computers became widely used in the legal field.[19] In the case of an electronic codicil,[20] the Second District found that a copy of a codicil retrieved from the hard drive of the same computer it was made on was a correct copy.[21] Review of this case was dismissed by the Florida Supreme Court.[22]
Disinterested Witnesses
The Florida Statutes require that the witnesses used to establish the lost will’s contents must be “disinterested.”[23] The Florida Supreme Court has held that a “disinterested witness” under this provision is a person who “has no stake in the outcome of the matter in which he or she offers evidence.”[24] In other words, a witness will not be considered “disinterested” and therefore disqualified from testifying if she is also a named beneficiary under the will she seeks to re-establish with her own testimony. Put another way, the State of Florida does not think it is a great idea to allow individuals to be able to claim that a will is “lost” but that they were present when it was executed, saw what the will said, and that the will left them a chunk of the estate.
“Disinterested Witness” versus “Interested Person”
There is an important distinction between the definition of a “disinterested witness” and an “interested person” under the Florida Statutes and Probate Code. Confusingly, a disinterested witness may also simultaneously be an interested person.[25]
An “interested person” is any person who can be reasonably expected to be affected by the outcome of a particular probate case.[26] Whether an individual qualifies as an “interested person” is the topic of much debate and litigation in the Probate Courts.
A personal representative of an estate, for example, if not also a beneficiary under a will, may have no private financial interest in the outcome of a proceeding, and therefore can be deemed to be a disinterested witness, but is nonetheless a key person who would certainly be affected by the outcome of a proceeding as the named personal representative of the estate, and is therefore an “interested person” entitled to receive notice and the opportunity to be heard.[27]
Under Section 733.207 of the Florida Statutes, an interested person may petition to establish a lost will, but the interested person must utilize testimony from disinterested witnesses.[28] It has been established, for example, that the testimony of the plaintiffs in a probate proceeding could not be used to establish a lost will because the plaintiffs alleged that they would take under the will and therefore could not serve as disinterested witnesses.[29]
Key Takeaways
Losing a will adds an additional layer of complexity to any probate case, even if a copy of the original is found. While witnesses can confirm the will and its contents, those witnesses can only be used in court to re-establish the will if they don’t have a personal stake in the will, such as alleging they were supposed to take a large chunk of money under the will that is now apparently conveniently lost.
The key lesson here is to work with trusted estate planning professionals to prepare and secure an original will, take steps to prevent that from being lost or inadvertently (or advertently) destroyed, inform beneficiaries where to find the will, and to use witnesses during will execution who are also not named in the will in any way.
[1] See generally, In re Estate of Hatten, 880 So.2d 1271, 1274 (Fla. 3d DCA 2004) (describing the circumstances that give rise to a lost will and specifically indicating that “[w]hen a decedent who has made a will dies, and the will cannot be found among the decedents [sic] personal papers (or other logical locations such as safety deposit box or family lawyer), a presumption arises that the decedent herself destroyed the will, intending to revoke it”).
[2] In re Washington’s Estate, 56 So.2d 545 (Fla. 1952) (“[t]he rule is well established that when a will has been lost or destroyed, the presumption of law is that the testator destroyed it with intention of revoking it . . .“); see also Fla Stat. § 732.506 (2022) (“A will . . . is revoked by the testator . . . by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation”).
[3] In re Parker’s Estate, 382 So.2d 652, 653 (Fla. 1980) (“The first step in overcoming this presumption is by the establishment and admission to probate of the lost or destroyed will . . .”).
[4] Fla. Stat. § 733.207 (2022).
[5] Id.
[6] Parker, 382 So.2d at 653 (“The word ‘copy,’ then, means a double of an original instrument, such as a carbon or photostatic copy”).
[7] Id. at 653 (“We therefore conclude that the words “correct copy” means a copy conforming to an approved or conventional standard . . .”).
[8] Id. at 653-654 (“The draft which the respondent introduced as a ‘correct copy’ of the lost will does not fulfill the requirements established by the aforementioned definitions of either of the statutory terms. It is not a ‘copy’ because a draft is not a double or a true transcript of an original writing. It is not ‘correct’ because it is not the approved or conventional way of making a copy of an original writing”).
[9] Id.
[10] Stewart v. Johnson, 194 So. 869, 872 (Fla. 1940) (“It is contended here that the provisions of this statute have not been met because the purported copy did not contain copy of the signature of the testator or copy of the signatures of the subscribing witnesses. We cannot agree with this contention”); see also Smith v. DeParry, 86 So.3d 1228, 1232-1233 (Fla. 2d DCA 2012) (“A copy need not be conformed to qualify as a correct copy under the statute. In other words, there is no requirement that the copy bear the signature of the testator or the signatures of the witnesses”).
[11] Stewart, 194 So. at 872. (“The copy of the will is admissible as evidence because it is the best evidence available as to the actual contents of the will which was executed. The copy is not for the purpose of showing the execution”).
[12] Id. (“In this case the execution of the will, of whihc [sic] the copy was presented to the Court, was sufficiently proved by the attorney who prepared the will . . . and by the witnesses who subscribed their names to the executed will”).
[13] Parker, 382 So. 2d at 654 (“A draft which is an accurate and correct reflection of the contents of a lost will is not the same as a ‘correct copy.’ To prove the former the statute requires the testimony of two witnesses”).
[14] Fla. Stat. § 733.207 (providing that a lost will can be established with one witness if a correct copy is also produced, otherwise two witnesses are required).
[15] 2019 Fla. Sess. Law Serv. 409 (West) §§ 30-40.
[16] See, e.g. In Re: Amendments to the Florida Probate Rules –2019 Fast-Track Report, 288 So.3d 565 (Mem).
[17] See Fla. Stat. § 731.201(40) (2022) (“‘Will’ means a testamentary instrument . . . . The term includes an electronic will as defined in s. 732.521.”); see also Fla. Stat. § 732.521(4) (“’Electronic will’ means a testamentary instrument, including a codicil, executed with an electronic signature by a person in the manner prescribed by this code, which disposes of the person's property on or after his or her death and includes an instrument which merely appoints a personal representative or guardian or revokes or revises another will”).
[18] In Re: Amendments at 565-566 (“The amendments shall take effect immediately upon release of this opinion”).
[19] DeParry, 86 So.3d at 1234 (“. . . [T]he supreme court decided the Parker II case in 1980. Although some personal computers were sold in the late 1970s, the personal computer did not come into general use in law offices and other businesses until the 1980s, after Parker II was decided. We do not think that the supreme court's reference in 1980 to carbon copies and photostatic copies as examples of ‘an identical copy’ was intended to limit for all time the types of copies that could be used to establish the contents of a lost instrument, regardless of future technological developments”(footnote omitted)).
[20] The word “will” as used in the Florida Statutes includes codicils; see Fla. Stat. § 731.201(40) (“’Will’ means a testamentary instrument, including a codicil . . .”) (emphasis added).
[21] DeParry, 86 So.3d at 1233-34 (“The Co–Personal Representatives proffered at the final hearing a copy of the codicil that they generated from the hard drive of the computer in Mr. Allen's office that was used to prepare the original document. The probate court ruled that the computer copy was a ‘draft’ that did not qualify as a ‘correct copy’ within the meaning of section 733.207. . . . it would be an anachronism to adopt a rule that a copy of a lost will or codicil retrieved from the hard drive of a computer or from a cloud database cannot be a ‘correct copy’ within the meaning of section 733.207”) (footnote omitted).
[22] Smith v. Estate of Smith, 129 So.3d 1069 (Table) (Fla. 2013).
[23] See Fla. Stat. § 733.207.
[24] DeParry 86 So.3d at 1235 (holding that “a ‘disinterested witness’—as the term is used in section 733.207—refers to a person ‘who has no private interest in the matter at issue.’ . . . To put it differently, a ‘disinterested witness’ has no stake in the outcome of the matter in which he or she offers evidence”).
[25] Id. (“The probate court's ruling erroneously assumed that an ‘interested person’ under the Probate Code could not simultaneously be a ‘disinterested witness’).
[26] See, Fla. Stat. § 731.201(23) (2022) (defining an “Interested person” as “. . . any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved”).
[27] DeParry, 86 So.3d at 1235-36 (“[f]or example, a personal representative may have no private interest in the result of a proceeding to determine the entitlement of a surviving spouse to the elective share conducted in accordance with Florida Probate Rule 5.360(c). In that sense, the personal representative is disinterested. However, the personal representative would be an interested person entitled to notice of the proceeding and opportunity to be heard”).
[28] Fla. Stat. § 733.207.
[29] Hatten, 880 So.2d at 1275 (Fla. 3d DCA 2004) (finding that testimony from three individuals could not be used to establish a lost will because those three, being the plaintiffs, were “interested” persons).