Probating a Lost or Destroyed Will

Occasionally, a Will is lost, and despite everyone’s best efforts, it cannot be found. In such instances, “any interested person may establish the full and precise terms of a lost or destroyed will and present it for probate.” The specific content of the will must be proven by the testimony of two disinterested witnesses. Alternatively, if a correct copy is provided, it can be proven by one disinterested witness.

A “correct copy” is a copy that follows a set of rules or standards. This means it’s an exact copy, like a carbon or photostatic copy. But with computers and other tech, people have also started to think that a copy from a computer or cloud database can be a “correct copy.” For example, in the case of Smith v. DeParry, the Florida Second District Court of Appeals ruled that a copy retrieved from a computer hard drive or cloud database could be considered a “correct copy.”

It’s important to note that the absence of the signatures of the testator or attesting witnesses from the offered copy does not prevent the establishment of the missing Will. The petition to probate a lost or destroyed Will is an adversary proceeding listed in Fla. Prob. R. 5.025(a). Formal notice of the proceeding must be served, as per Rules 5.025(d) and 5.510(d).

In addition to reciting the information required for a petition for administration, the petition must include a statement of the facts constituting the grounds for relief. This statement can either be a summary of the will’s contents or a copy of the will, if available. Rule 5.510(b).  The proof must consist of a copy of the Will, if any, and the testimony presented at the hearing. Each witness’s testimony must be reduced to writing and filed.  The order admitting the Will to probate must be super detailed, listing every single thing it says.

Understanding the burden of proof in Lost or Destroyed Will probate contests.

When a will is last seen in the testator’s possession but cannot be found after their death, a presumption arises that the testator intentionally destroyed it to revoke it. This presumption is rebuttable, meaning the proponent of the will must prove otherwise.  The burden of proof lies with the proponent. For instance, in Balboni v. LaRoque (991 So. 2d 993, Fla. 4th DCA 2008), citing In re Washington’s Estate (56 So. 2d 545, Fla. 1952), possession of the will by the testator is crucial to this presumption. However, the presumption can be overcome by evidence proving the will was lost or destroyed without the testator’s consent or that the testator was incapable of revoking it while in possession. If the provisions of the purported will contradict the testator’s natural affections, the burden shifts to the proponent to prove by a preponderance of the evidence that the will was indeed the voluntary and freely expressed will of the testator. This was demonstrated in In re Estate of Deane (153 So. 2d 26, Fla. 3d DCA 1963).

Ormond Beach Probate Litigation Lawyer

Florida Trust and Probate Litigation demands the expertise of a skilled advocate to aggressively represent your interests and safeguard your rights against unscrupulous family members and greedy parties. If you are a party to a Florida Will or Trust Contest, contact Ormond Beach lawyer Andrew J. Pascale at 877-667-1211 to enhance your legal standing. Please note that this blog does not constitute legal advice and serves illustrative purposes only.