Missing Last Will & Testament: Lost or Revoked?
Lost Will: Evidence Has To Be Sufficient to Overcome Presumption that Will Was Revoked When It Cannot Be Located After Death.
On October 1, 2008, The Florida Fourth District Court of Appeals reversed a Broward County Probate Court ruling in Balboni vs. LaRocque 33 Fla.L.Weekly D2314a ( 4th District. Case No. 4D07-3991. October 1, 2008) holding that the evidence presented was legally insufficient to rebut the presumption of intentional revocation.
Initially, it should be noted that the law in Florida, like most other states, holds that evidence that a testator’s will was in his possession prior to death and cannot be located subsequent to death gives rise to a rebuttable presumption that the testator destroyed the will with the intention of revoking it. In re Estate of Carlton, 276 So. 2d 832, 833 (Fla. 1973); In re Estate of Parson, 416 So. 2d 513, 517 (Fla. 4th DCA 1982) (“Revocation may be accomplished by the simple, quiet and unpublished act of throwing a will in the trash with the intention of revoking it.”).
In order to rebut the presumption of intentional revocation, it is usually necessary to present evidence that the will was either accidentally lost or destroyed, or willfully and fraudulently destroyed by an adverse party. In several cases, Florida courts have found the presumption of intentional revocation to be rebutted by a showing of: 1) evidence that a person with an adverse interest, and the opportunity, may have destroyed the will, see In re Estate of Washington, 56 So. 2d at 547; Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996); Upson v. Estate of Carville, 369 So. 2d 113 (Fla. 1st DCA 1979); 2) evidence that the will was accidentally destroyed, see In re Estate of Carlton, 276 So. 2d at 833 (presumption was rebutted where decedent repeatedly spoke of his will and his intention to leave his estate to the petitioner, although the decedent’s safe was found waterlogged and the papers inside turned to “mush”); 3) evidence that the original will had been seen among the decedent’s papers after her death, see Silvers v. Estate of Silvers, 274 So. 2d 20 (Fla. 3d DCA 1973); and 4) evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the will, see In re Estate of Niernsee, 2 So. 2d 737 (Fla. 1941).
In Balboni, Bill LaRocque died in a nursing home in Broward County in 2006, at the age of 95. He was survived by two children, W. Ronald LaRocque (Ron) and Carole Torrance. He was predeceased by wife, Charlotte, who died nine months earlier, and son, Richard LaRocque, who died in 1993 and was survived by children, Kim Balboni and Richard W. LaRocque (Ricky). Thus, at the time of Bill’s death, he had four lineal descendants who were heirs at law pursuant to section 731.201(18), Florida Statutes (2006): 1) son, Ron; 2) daughter, Carole; 3) granddaughter, Kim; and 4) grandson, Ricky.
Bill and Charlotte executed mirror-image estate planning documents on June 20, 2002. Pursuant to Bill’s last will and testament, if he is predeceased by Charlotte, the will distributes his estate as follows: $50,000 to four named grandchildren, including Ricky; $10,000 to each surviving great-grandchild; and the remainder to children, Ron and Carole. The will expressly excludes grandchild, Kim, and her children. In 2004, at his parents’ request, Ron retrieved their June 20, 2002 wills from a bank safety deposit box and left them with his parents at their home. After Bill’s death, Ron searched the home and found a manila envelope that contained Charlotte’s will, Charlotte’s living will, and Bill’s living will. Bill’s last will and testament was never found.
Ron and Carole then filed a petition for the establishment and probate of a copy of the lost will. They maintained that the will was accidentally lost or destroyed and that Bill did not intend to revoke it. Bill’s grandchildren and heirs at law, Kim and Ricky, opposed the petition and the case worked its way through the Court system.
As stated above, Florida law presumes that Bill intentionally revoked his will. To avoid a finding of revocation, Ron and Carole, the proponents of the lost will, had the burden of coming forward with competent substantial evidence that would justify a finding that the will had not been revoked. See In re Estate of Baird, 343 So. 2d 41, 42-43 (Fla. 4th DCA 1977) (citing In re Estate of Washington, 56 So. 2d 545 (Fla. 1952); In re Estate of Evers, 34 So. 2d 561 (Fla. 1948)).
In Balboni, Ron and Carole, the petitioners, argued that the will was accidentally lost or discarded due to increased traffic and paperwork in the home during Charlotte’s illness. It was undisputed that Kim and Ricky, the interested parties, had no opportunity to destroy the will; rather, it was argued that nurses and visitors, third parties who have no interest in the will, caused the will to be misplaced.
The evidence presented in Balboni established that Bill was a meticulous, secretive, and commanding businessman during his lifetime. For many years, Bill, who was prone to temper flare-ups, was not on speaking terms with Kim. Bill was generally fond of and trusted Ron. Bill and Charlotte always did their estate planning together and Bill executed various wills over the years that consistently excluded Kim. After the hearing, the probate court held:
[T]he evidence presented as to decedent and Charlotte’s long standing testamentary scheme, and the discord that existed between them and Kim, is sufficient to rebut the presumption and support the admission of the will to probate. However, as further evidence in support of overcoming the presumption, the Court finds that rather than being destroyed by decedent with the intent to revoke, it is more likely that the will was either lost among the papers written by the nurses who were in the house starting in January 2004, or was misplaced by decedent, or by Charlotte, or by one of the other newcomers in the house. The Court bases this conclusion on the fact that starting in January 2004, the amount of traffic in the house increased substantially, and the regular routine of the house was disrupted; that decedent and Charlotte always did their estate planning together; and that the Court believes it unlikely that Bill would have destroyed his will when Charlotte did not.
On appeal, however, the Fourth District Court of Appeals reversed the Broward County Probate Court and found that the trial court misinterpreted the legal effect of the evidence and misapplied the presumption. The Court stated that that the presumption of revocation gives rise to more than a “mere permissible inference of revocation.” 343 So. 2d at 42. Rather, the effect of the presumption is to require a finding of revocation, unless the proponents of the lost will offer evidence tending to show that the will had not been revoked. See id. at 43.
In Balboni, the evidence relied upon (the reciprocal wills of Bill and Charlotte), the decedent’s longstanding testamentary scheme, the discord between the decedent and granddaughter Kim, and the presence of nurses and visitors in the home was simply not sufficient to overcome the presumption that the decedent intentionally revoked his will at some point in time prior to his death. Since it was undisputed that Charlotte predeceased her husband, the evidence that her will was found was not material. Likewise, evidence of a decedent’s fondness of someone or, in this case, a lack thereof, was not material to the question of revocation.. Further, the fact that people with no interest in the will had the opportunity to accidentally destroy it and “might possibly have done so obviously is no evidence whatever that they did.”
This case is a good reminder that in order to overcome the presumption, the evidence has to be presented with real facts as opposed to mere speculation. Had there been evidence of Bill making statements consistent with the theory that he had intended his will to remain in effect, or that he had referenced his will later in life, might have changed the outcome.