Creating a will gives a testator the ability to ensure that his or her wishes are carried out after death, and ideally the testator will have a plan for safekeeping that original will. This often includes having the nominated personal representative, and perhaps a trusted person or two, knowing where the original will is kept. Unfortunately, the original will may go missing. The testator may lose it, forget where he or she kept the original, did not understand the importance of keeping the document, or even perhaps it was inadvertently thrown away. Often, family members know the provisions of a will. If that will is lost or destroyed, there is potential for a challenge to be brought, and options to ensure your loved one’s wishes are carried out.
There are specific requirements in Florida law if an original will cannot be located. To establish both the existence and validity of a will without the original, a petition for lost will needs to be filed with the court. Florida Statute 733.207 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.
The procedural guidelines for such a petition are found in Fla. Prob. R. 5.510:
(a) Proceeding. The establishment and probate of a lost or destroyed will shall be in one proceeding.
(b) Petition. The petition, in addition to reciting information required under these rules for petition for administration, shall include a statement of the facts constituting grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will.
(c) Testimony. The testimony of each witness in the proceeding shall be reduced to writing and filed and may be used as evidence in any contest of the will if the witness has died or moved from the state.
(d) Notice. No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised.
(e) Order. The order admitting the will to probate shall state in full its terms and provisions.
If no copy of the will is found, the proof becomes more difficult. Two witnesses are needed, rather than just one. Even locating those witnesses who signed the will may be difficult. Moreover, the witnesses must be able to establish the terms of the will from their memory. Affidavits are insufficient – actual testimony from the witnesses is required. Brennan v. Brennan, 40 So.3d 894 (Fla. 5th DCA 2010).
Another issue when there is no copy of the will found is the presumption in Florida law that a will which cannot be located is presumed to have been intentionally destroyed. Intentional destruction of a will is one way in which a testator can revoke a will. The one who seeks to establish the will would be required to prove, through evidence, that the testator did not revoke the will by destroying it. Florida Statute 732.506 provides the guidelines:
A will or codicil, other than an electronic will, is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. An electronic will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.
What if the will cannot be established? What if there is insufficient evidence to show that the copy of the will is a true copy of the lost original will, or there is no copy and the witnesses cannot make the necessary proof? Possibly a prior will, or intestacy may be considered.
Other concerns are when a family member or other interested person disagrees with the accuracy of the copy of the will, or litigation is filed on the issue of whether there was intentional destruction of the original will.
Your experienced probate lawyer can guide you through all of these issues regarding a lost will.