Florida Probate, Trust & Guardianship Litigation

Lost and Missing Wills in Florida Probate

It is fairly common for the original will to become missing or lost.  If the will is missing or lost, can it go through probate? In Florida, a lost or missing will can only go through probate if admissible evidence can be presented as to what happened to the lost or missing will.

Florida’s Lost Will Statute

Section 733.207 is Florida’s statute governing establishment and probate of a lost will.  Section 733.207 states:

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.

Pursuant to Florida Probate Rule 5.510, the establishment and probate of a lost or destroyed will must take place in one proceeding.

What Evidence Is Necessary To Establish A Missing Will?

It is well-settled under Florida law 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).

To order to rebut the presumption that the will was destroyed, Florida courts have permitted a variety of evidence.  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 Washington’s Estate, 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 (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, 147 Fla. 388, 2 So.2d 737 (1941).

Case Study: Balboni v. Larocque

The case of Balboni v. Larocque, 991 So.2d 993 (4th DCA  2008), shows how courts weigh evidence in determining whether a missing or lost will in Florida was destroyed by the testator with the intent to revoke the will.

In the instant case, the evidence relied upon—the mirror-image 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—is 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 is not material. Likewise, evidence of a decedent’s fondness of someone or, in this case, a lack thereof, is not material to the question of revocation. See id. at 43. 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.” Id. We therefore conclude that here, as in Baird, the petitioners have failed to rebut the presumption of revocation with competent substantial evidence and instead have “presented no more than the fabled twins of speculation and conjecture to establish that [the decedent] might not have revoked his will.” Id. at 43–44.

Attorney Fees in Lost Will Litigation

Recently, in In re Estate of Alnoor Jetha, the Seminole County Court denied a petition for attorneys’ fees brought by the nominated personal representative of a will that was denied probate.  In Jetha, the nominated personal representative sought payment of his attorneys’ fees and costs incurred in litigating a lost will pursuant to Fla. Stat. § 733.106(2), which states:

 A person nominated as personal representative, or any proponent of a will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive costs and attorney’s fees from the estate even though probate is denied or revoked.

Citing the Fourth District’s decision in In Re Sangenito, 631 So.2d 1125 (Fla. 4th DCA 1994), the trial court found than an award of fees under Fla. Stat. § 733.106(2) required a showing by the would-be personal representative that (i) he acted in good faith; and (ii) that the will was offered in due form. 

The pertinent facts before the trial court in Jetha were identical to those before Fourth District in Sangenito:  the original will at issue was last known to be in the possession of the testator; the will was lost or destroyed; and a purported photocopy of the will was offered for probate in its stead.  These facts give rise to a legal presumption that the testator destroyed the will with the intent of revoking it.  See In Re Washington’s Estate, 56 So.2d 545 (Fla. 1952).  In both instances, the proponent of the lost will failed to rebut this presumption, compelling the conclusion that the will was revoked. 

In Sangenito, the Fourth District held that the “due form” requirement could not be met, and attorneys’ fees could not be awarded, in offering for probate a will which was adjudicated to be revoked.  As the facts at bar in Jetha were identical to those in Sangenito, the trial court denied the request for attorneys’ fees in this lost will case. 

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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