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.
