Tuesday, November 22, 2016

Lost Will

Occasionally the question arises in the estate planning field, what happens if a person has a Will, but the original document cannot be found. This scenario is extremely troubling and frustrating as it is typically not realized until after the testator has already died.

The general rule in Florida is that if an original Will cannot be located, it is presumed to be destroyed, as though the testator intended to revoke it. It would appear initially that the decedent’s estate will now be administered pursuant to Florida’s laws as he or she had died intestate (i.e. without a will).

However, a few things can be done in the event that an original Will cannot be found. Florida Statute Section 733.207 permits any interested person (i.e. an individual who would have been a beneficiary under the lost Will) to establish the full and precise terms of a lost or destroyed Will and offer the Will for probate. The statute further states that the specific content of the Will must be proven by the testimony of two disinterested witnesses; or if a correct copy of the missing Will is provided, it may be proven by only one disinterested witness.

The interested person must bring forth sufficient evidence to rebut the presumption that the decedent intended to revoke the missing Will. Examples of such evidence are; that the decedent did not have the capacity to revoke the Will; that the original Will had been seen after the decedent’s death; or that the original Will had been destroyed accidentally. 

Unfortunately, if the interested person cannot bring forth sufficient evidence in rebuttal of the presumption that the decedent intended to revoke the missing Will, the decedent will be deemed to have died intestate. This holds true even if the interested person has an actual copy of the missing original Will but lacks a witness to prove it. Therefore, it is extremely important that one’s Will is kept in a safe place, and that other people close to you have knowledge of where it is located and how to access it should the need arise.