As estate attorneys, we often encounter a situation where a person is deceased and the original of their Last Will and Testament cannot be found. Often, the family suspects that the original has been lost or misplaced–not that it was intentionally destroyed by the decedent before death. Is the fact that the orignal of the Will cannot be found fatal to being able to probate the Will? The answer is often “no.”
Section 733.207, Florida Statutes provides that:
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.
This statutory provision sets forth how the terms or contents of a lost or destroyed Will can be “proven up.” If there is a correct copy–which often there is–then only one witness is needed. In that case, the witness must be able to identify the copy and testify that the copy accurately reflects the original of decedent’s last Will. If there is no copy, then the contents of the missing Will can still be established if there are two disinterested witnesses who can testify about what the missing Will said.
In addition to proving the terms or contents of the missing Will, the petitioning party must demonstrate to the probate court that the Will is not missing because the decedent intentionally destroyed it as an act of revocation of the Will. In other words, if the original cannot be found because the decedent changed his or her mind and “tore it up” then the Will should not be admitted to probate even if its contents can be proven. In Florida, there is a presumption that if the original is missing, the decedent destroyed it. That presumption must be overcome by the party proving up the Will.
In order to prove up a lost or destroyed Will, a probate court will usually require a hearing with a court reporter present. At that hearing, the witnesses are required to give testimony under oath in order to establish both the terms of the Will–or to identify an copy of the Will–and to overcome the presumption that the decedent intentionally destroyed the Will.
An real life example can demonstrate how this works. A man came to our office in order to have us probate his deceased mother’s estate. He had a copy of the Will but could not find the original. However, he knew that his mother did not destroy the original because he had actually seen the original after the mother died. Unfortunately, the original had somehow been misplaced as his mother’s condominium was being cleaned up. We filed a probate, including a “Petition to Re-Establish Lost Will” and at the hearing on that Petition, the client was able to present a copy of the Will and to testify that the copy was an accurate duplicate of the original. He was also able to testify that his mother had not destroyed the original–because he had actually seen the original after her death. The probate court accepted this testimony and admitted the Will to probate.
One bit of advice comes out of this discussion. It is wise to keep the original Will in a safe place and to make sure your loved ones know its location. Having the original of the Will, while not 100% necessary, still makes the probate go smoother and with less time and expense.