It is possible in certain situations to use a copy of a Last Will and Testament for the same purpose as an original. We live in a paperless time. Today’s technology allows us to electronically sign important documents without ever putting pen on a piece of paper. We can use copies of documents for the same effect as an original.
The probate of a deceased person’s Last Will and Testament is one of the few situations where an original (ink on paper) document is required. But a copy of a will may be admitted to probate under certain circumstances. The procedure to admit a copy of a will to probate is often confused with the procedure to have a non-self-proving will admitted to probate. The procedures are different.
The statutory authority is found in Florida Statute Section 733.207:
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.
The specific procedural requirements are found in Florida Probate Rule 5.510:
(a) Proceeding. The establishment and probate of a lost or destroyed will shall be in one proceeding.
(b) Petition. The petition, in addition to reciting information required under these rules for petition for administration, shall include a statement of the facts constituting grounds on which relief is sought, and a statement of the contents of the will or, if available, a copy of the will.
(c) Testimony. The testimony of each witness in the proceeding shall be reduced to writing and filed and may be used as evidence in any contest of the will if the witness has died or moved from the state.
(d) Notice. No lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property thereby devised.
(e) Order. The order admitting the will to probate shall state in full its terms and provisions.
First, a proceeding to establish a copy of a will is automatically an adversarial proceeding pursuant to Florida Probate Rule 5.025 and, after service of formal notice, must be conducted like suits of a civil nature with the application of most rules of civil procedure. It must take place in one proceeding.
Second, the petition to admit a copy has the same requirements as a petition for administration of an original will, with the added requirements to allege that the decedent executed a written will, but the original was lost or destroyed without intent by the decedent to revoke it, and a statement of the contents or an attached copy of the will. The petitioner may also allege that the decedent did not have possession or control of the original will during their life to avoid the presumption that the decedent destroyed the original will with the intent to revoke it. 1
Third, the testimony of each witness offered to prove the specific content of the will must be reduced to writing. An affidavit is not testimony but is inadmissible hearsay. Also, an oath of witness that can be used to admit a will that is not self-proving is not testimony. The testimony of the witness, in court or deposition, is necessary to prove the content of the will. Only the testimony from one disinterested witness is required if you have a correct copy. This one requirement raises two issues: what is a “correct copy” and what is a “disinterested witness?” A correct copy is an identical copy of the original will that was signed, whether printed from an electronic document management system, hard drive or a hard copy found in a file. 2 It is not necessary for the correct copy to contain signatures of the testator or the subscribing witnesses because the purpose of this procedure is to prove the contents of the will, not the execution. 3 Execution of a copy, once established, is proven the same way as for an original. A “disinterested witness” is different from an “interested person” under Florida Statute Section 731.201(23). A disinterested witness is a person who has no stake in the outcome of the proceeding. 4 A nominated personal representative in a will is an interested person but may also be a disinterested witness who can testify about the content of a lost will. 5
Fourth, formal notice of the petition to probate the copy of the will must be served on all persons who would be beneficiaries of the estate but for the will i.e. intestate beneficiaries or beneficiaries under a prior will.
Finally, the order admitting the will must state the full terms of the will or attach and incorporate the correct copy.
However, a presumption that the testator intentionally revoked the lost or destroyed will can arise. The proponent of the lost will must overcome this presumption. “Where a will, which cannot be found following the death of the testator, is shown to have been in his possession when last seen, the presumption is, in the absence of other evidence, that he destroyed it [with the intention of revoking it].” 6 This presumption of revocation arises once the opponent of the will presents evidence that the will was last seen in the decedent’s possession. The proponent of the lost will must present substantial, competent evidence that the decedent did not destroy the will with the intent to revoke it. 7 If the proponent cannot present sufficient evidence to rebut the presumption of revocation, the court must find that the decedent intentionally destroyed the will with the intention to revoke. 8
Circumstantial evidence can suffice as competent, substantial evidence under the presumption analysis. 9 Access to the location where the will is presumably located by parties with adverse interests to the will is one factor. 10 But mere opportunity to destroy alone is not enough to rebut the presumption. 11 Evidence that a lost will was lost or destroyed accidentally can rebut the presumption. 12 The presumption of revocation must be based upon a testator’s intent to revoke. 13
Evidence of decedent’s lack of mental capacity by reason of mental illness can establish that decedent lacked the necessary testamentary capacity to effectively revoke a will. 14
The presumption of revocation does not arise in every lost or destroyed will case, but only when “the original will has been in the possession and control of the decedent.” 15
The procedure to probate a lost or destroyed will is rarely simple and involves much more than filing a petition with affidavits attached. The determination of whether the presumption of revocation arises and is rebutted is a factually intense analysis and presents one more complication to the already complicated procedure of admitting a lost or destroyed will to probate.
1. In re Washington’s Estate, 56 So. 2d 545, 547 (Fla. 1952)
2. See Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012)
3. In re Estate of Maynard, 253 So. 2d 923, 924 (Fla. 2d DCA 1971)
4. See Smith v. DeParry, 86 So. 3d at 1235
5. Id.
6. In re Washington’s Estate, 56 So. 2d 545, 547 (Fla. 1952)
7. In re Baird’s Estate, 343 So. 2d 41 (Fla. 4th DCA 1977)
8. Id.
9. Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1996)
10. Estate of Parson, 416 So. 2d 513, 515 (Fla. 4th DCA 1982)
11. Daul v. Goff, 754 So. 2d 847, 848 (Fla. 2d DCA 2000)
12. Balboni v. LaRocque, 991 So. 2d 993, 995 (Fla. 4th DCA 2008)
13. In re Carlton’s Estate, 276 So. 2d 832, 833 (Fla. 1973)
14. In re Niernsee’s Estate, 2 So. 2d 737, 739 (Fla. 1941)
15. Shultz v. Estate of Roach, 549 So. 2d 1156, 1156 (Fla. 3d DCA 1989)
