In the realm of probate law, where family disputes often intersect with legal technicalities, a recent decision from Florida's Third District Court of Appeal underscores the critical importance of proper documentation, evidentiary hearings, and appellate preservation. The case, Myrlie Coleman v. Safare Horn (Third DCA, November 5, 2025, --- So.3d ---, 2025 WL 3085294) affirmed a trial court's order establishing a lost will based on a copy, highlighting procedural hurdles that can make or break an appeal. This ruling is a must-read for estate planners, personal representatives, and beneficiaries dealing with missing original documents.
Case Background: A Family Dispute Over a Missing Will
Natalie Horn passed away on April 30, 2022. Her sister, Myrlie Coleman, initially petitioned for intestate administration, claiming Natalie died without a will, and was appointed personal representative. Over a year later, their brother, Safare Horn, filed a petition to establish a lost will from December 8, 2020, supported by a copy provided by their cousin, Lanette Jones. Horn alleged that Natalie had executed the will, had it notarized by Anita Porter, and entrusted the original and copy to Jones, who later misplaced the original.
Coleman objected, seeking dismissal, but after an evidentiary hearing where Porter testified, the trial court granted Horn's petition, establishing the lost will and mooting Coleman's objections. Coleman appealed, arguing insufficient evidence under Florida Statute § 733.207 and procedural non-compliance with Florida Probate Rule 5.510.
The Appellate Court's Analysis: Emphasis on Preservation and Evidence
The Third District, in an opinion by Judge Lobree (with Chief Judge Scales and Judge Miller concurring), affirmed the trial court's decision. Key points from the ruling:
- Evidentiary Sufficiency Under § 733.207: Coleman claimed Horn failed to meet the statute's requirement for proving a lost will—testimony from two disinterested witnesses or one if a correct copy is provided. However, without a hearing transcript or an approved statement of evidence under Florida Rule of Appellate Procedure 9.200(b)(5), the court presumed the trial court's findings were correct. Citing precedents like Zarate v. Deutsche Bank Nat'l Tr. Co. (81 So.3d 556, 558 (Fla. 3d DCA 2012) and Smith v. Orhama Inc. 907 So.2d 594, 596 (Fla. 3d DCA 2005), the appellate court noted that absent a record, no fundamental error appeared on the order's face.
- Procedural Compliance with Rule 5.510: Coleman argued violations of subsections (c), (d), and (e)—requiring written witness testimony, formal notice to potential intestate heirs (like their mother's estate), and full recitation of the will's terms in the order. The court found:
- Arguments on (d) and (e) unpreserved, as they weren't raised timely (e.g., in a motion for rehearing for facial errors).
- No harmful error shown for (c), as Coleman didn't explain prejudice.
This decision reinforces that appellants bear the burden of providing a complete record and preserving issues below, or risk affirmance.
Key Takeaways for Probate Practitioners and Families
- Lost Will Requirements: Under Fla. Stat. §733.207, a copy plus one disinterested witness (like the notary here) can suffice. This case shows courts will uphold such establishments if the evidentiary bar is met, even amid family objections.
- Family Dynamics in Probate: Sibling disputes over intestacy vs. testacy highlight the need for secure will storage and clear communication. Using safes, attorneys, or digital vaults can prevent "lost" originals.
- Estate Planners: For estate planners, this affirms the value of duplicates and witnesses but warns of the evidentiary battles if originals vanish.
If you're handling an estate with a potentially lost will, consult a Florida probate attorney early to navigate statutes like §733.207 and rules like 5.510. Proper planning and documentation can avoid these pitfalls altogether.
