Blogs from May, 2012




             As a Florida will and trust dispute lawyer, I frequently encounter situations where the original will or trust (or amendments thereto) is lost.  Often, after a loved one’s death, we are presented with situations where we only have photocopies of the will or trust to determine the intent of our loved one’s testamentary wishes.

             The procedure and challenges faced within that procedure in the law were outlined in a recent case Smith v. DeParry, 37 Fla. L. Weekly 1070; 2012 Fla. App. Lexis 6880 (Fla. 2nd DCA 2D11-1851 2012).  In this case, the decedent owned two dogs which were the subject of a lost will which had established a pet trust for the health, care, and welfare of the dogs.  The Florida will and trust dispute lawyer who represented the personal representatives of the estate, filed the documents necessary to establish the decedent’s lost will and the probate court held an evidentiary hearing.

             The trial court entered an opinion that the copy of the will generated from an office computer did not qualify as a correct copy of a will under the statute.  The law governing the procedure for establishing a lost or destroyed will require the testimony of one disinterested witness if the proponent can produce a “correct copy of the instrument.”  The probate court also ruled that the testimony of a co-personal representative could not be used to prove the specific content of the lost will because the co-personal representative was not a disinterested witness.

             The Second District Court of Appeal applying the “tipsy coachman” doctrine affirmed the probate court’s order finding that although it reached the correct result, it did so for the wrong reasons.  First, the court found that although people can readily alter documents on computers, they can also alter carbon copies and photocopies: “The possibility that an unscrupulous few may misuse a particular form of technology is not a reason to reject that technology entirely.  Here, there was no evidence that anyone had altered the computer copy proffered or copy of the Codicil.”  The court found therefore that a computer-generated copy can be a “correct copy” for purposes of establishing a lost or destroyed will.

             As a law firm that concentrates its practice on handling Florida will and trust disputes, our lawyers typically seek in the discovery process and complete examination of computer hard drives to determine if the “copy” of the will or trust that has been offered for probate has been altered.  The field of electronic discovery has expanded exponentially, and we have discovered that cases today are often won or lost depending on the Florida will and trust dispute lawyers’ use of technology in gathering computer evidence.  This is especially true in disputes involving lost wills and trusts.


Most Recent Posts from May, 2012