The Restatement (Third) Property (Wills and Donative Transfers) §4.1 provides that “if a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved. Commonly in such cases, the will is proved by evidence from a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.”

Similarly, Florida has adopted its own code provisions regarding the practice and procedure for admitting lost or destroyed will to probate. See Florida Probate Rule 5.510. However, there are some jurisdictions that have not adopted a code provision regarding the procedure for use when a will cannot be located after the decedent’s death. (more…)

Lost Will: Evidence Has To Be Sufficient to Overcome Presumption that Will Was Revoked When It Cannot Be Located After Death.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. (more…)