As with any other physical object, wills may be subject to being inadvertently destroyed or lost. Either scenario may cause a variety of issues for the nominated personal representative and beneficiaries of the decedent. Even when taking steps to safeguard the original of a last will and testament, such as by keeping the document in a safe or in a safe deposit box, unexpected situations can and do arise, such as natural disasters, fires, or even third parties who intentionally destroy or steal the document. When this occurs (i.e., when you are no longer in possession of the original document), what steps can be taken to establish the validity of a last will or testament that has been lost or destroyed? The answer to this question will depend on a variety of factors.
In Florida, whenever an original will has been lost or destroyed, there is a presumption that the testator intended to revoke the will by destroying it, and the proponent of the will has the burden of proving the contrary. Under Florida Statute 733.207, “[a]ny interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate.” Additionally, “[t]he 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.”
In the case In re Estate of Parker, the original last will and testament of the decedent had been lost or destroyed. Nevertheless, the personal representative possessed an almost identical typewritten draft of the will. In this case, the Florida Supreme Court pondered on the issue of whether this typewritten draft would constitute a “correct copy” of the will pursuant to section 733.207 of the Florida Statutes. After considering the dictionary definition of the words “correct” and “copy,” the Court held that “the words ‘correct copy’ means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.” In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980).
A carbon and photostatic copy may not be the only way to create a “correct copy” of a will under Florida Statute section 733.207. In Smith v. DeParry, a codicil which bequeathed $40,000 to establish a pet trust for the decedent’s pets was lost. In its place, the co-personal representatives offered “a copy of the codicil that they generated from the hard drive of the computer … that was used to prepare the original document.” The court, while comparing the facts of this case with the holding in Estate of Parker, held that “[u]nquestionably, a copy of a document generated on a computer can be identical to- and indistinguishable from- the original.” As such, the court held that “a copy of a lost will or codicil retrieved from the hard drive of a computer or from a cloud database” was sufficient to be considered a “correct copy” under Florida Statute section 733.207.
In addition, the court in DeParry also provided a complete definition of the meaning of “disinterested witnesses” and “interested person.” In doing so, the court held that, based on the different meanings between the words, an “interested person” such as a personal representative, may simultaneously be a “disinterested witness” for purposes of complying with Florida Statute section 733.207. However, to comply with the statute, the “disinterested witness” may not have any “stake in the outcome of the matter in which he or she offers evidence.” The disinterested witnesses must also have knowledge of the contents of the will in order to prove its validity. See Brenan v. Honsberger, 101 So. 3d 415 (Fla. 5th DCA 2012).
Even if you are able to prove the content of the lost or destroyed will, you must also overcome the presumption of revocation. In other words, even if you are able to offer a correct copy of the will and the oath of a disinterested interest in support of same, the law will still treat the original will as having been intentionally revoked, unless you can offer evidence to the contrary (i.e., that the original will was accidentally destroyed in a fire, or someone saw the original will following the death of the decedent).