Let’s say a loved one has just died. Maybe a parent, sibling or a friend, and you know that you were named a beneficiary of that person’s estate or believe that that person has designated you the personal representative (executor) of his or her estate. You locate a copy of the will somewhere amidst the decedent’s personal effects, but you can’t seem to find the original form of the document. What happens under Florida law?
Florida Statutes provide a method and procedure for proving up a lost will. This process is by no means simple. Firstly, there is a presumption created under Florida Law that if a Will was last known to be in the possession of the testator and can’t be located after the testator’s demise, a presumption is created that the testator destroyed the Will with the intent to revoke it, meaning he intended that it have no effect on the devise or descent of his property after death. To overcome this presumption, the proponent must come forward with evidence that the the Will was either lost or destroyed without the consent of the Testator, or that the testator was not capable of revoking the Will while it was in his or her possession. Evidence that a person had access to the document whom may have not liked the manner of devise, could be a factor in overcoming this legal presumption.
When the proponent of the Will files a probate proceeding involving a lost or destroyed Will, Florida Probate Rule 5.510 provides the following requirements
ESTABLISHMENT AND PROBATE OF LOST OR DESTROYED WILL
(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.
Any person may establish the terms of a lost or destroyed and Will and offer that Will in the probate proceedings. The content of the Will must be proved by testimony of two disinterested witnesses, or if a correct copy is provided, only the testimony of one witness will be required of the proponent.
Considering that there are often heirs who may have an adverse interest in proceedings of this nature given the fact that the devise of the property under the decedent’s will may be very different than the result reached if that property passes via the intestacy statutes, these proceedings can be highly contentious resulting in a battle between the heirs claiming right to the decedent’s estate property. These are designated as adversarial proceedings under the probate rules, and will be litigated within the probate court as part of the administration of the decedent’s estate.