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Published: Sep 1, 2022

Updated: Dec 8, 2023

Lost but not Forgotten: Lost Wills and How to Establish Them

[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).

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