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Probate Litigation

Written by on Jul 13, 2011| Posted in: Probate Litigation

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife were seeking to inherit even though in the copy of his Last Will and Testament his estate was left entirely to his minor child. 

Although a presumption exists that the will was destroyed with the intent to revoke when the original last will cannot be located, a Florida probate lawyer can assist in trying to overcome that presumption.  To do so, the person who wants the copy of the will or the “lost” will to be honored and admitted into probate has the burden of introducing evidence to honor the copy as the original.  Evidence which is relevant includes a copy of the lost or destroyed will and testimony of the witnesses to the signing of the will.  Florida Statute 733.207 provides that:  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.

Certainly my client, as a named beneficiary in the copy of the will, was an interested person.  Additionally, the children from the first wife who were the intestate heirs of the Decent were also interested persons.  Fortunately, through investigation and discovery, we were able to determine the name of the attorney who created the last will and testament, and at his deposition he produced a copy of the decedent’s will in addition to some notes he took regarding the decedent’s intent.  As his contact with the decedent was limited to drafting a will many years prior, he was able to act as the sole disinterested witness in rebutting the presumption that the decedent intended to revoke his Last Will and Testament just because the original was not located.

The probate court was most interested in the testimony of the drafting attorney as a disinterested person.  This attorney was being called to testify as to the terms of the decedent’s “lost” will.  The lawyer’s testimony had nothing to do with the typical challenge to the decedent’s will for issues of lack of testamentary capacity or fraud.  When the lawyer testified, there was no issue of bias or credibility about what the decedent wanted and that the copy of the will expressed the desires of the decedent.  On the other hand, the Decedent’s children who had access to his safe right after death stood to gain financially if the Court found the Decedent intended to revoke his will because the original could not be found.  Fortunately the evidence we were able to obtain was sufficient to overcome the statutory presumption that the decedent revoked his will because the original was not located.

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