Can A Copy of A Last Will & Testament Be Admitted To Probate?

“It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. The proponent of the lost will has the burden of introducing competent, substantial evidence to overcome the presumption. The first step in overcoming the presumption of revocation is by the establishment and admission to probate of the lost or destroyed will pursuant to § 733.207, Fla. Stat. (2007)”. Brennan v. Honsberger, 101 So. 3d 415, 415 (Fla. 5th DCA 2012).

Section 733.207 of the Florida Statutes provides: “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 law requires that the proponent of admitting the lost Will to probate must not only establish that the decedent legally executed the document, but must also prove the content of such document by a disinterested witness.  Even though the Court presumably has a copy of the original document, Florida law requires the testimony of a disinterested witness to confirm that the contents of the copy are as were intended by the decedent.

In the Brennan case, the Fifth District Court of Appeals held that the proponent of the will in that case was incorrect by suggesting that by presenting a correct copy of the will, the need for her to present corroborating testimony about its contents at the hearing was not necessary. The Court stated that, although two witnesses testified as to the execution of the will, neither had knowledge of its content.  Because of this, the Court stated that the proponent of the will “…was required to present the testimony of at least one disinterested witness to establish its content. Id. at 897. Because Ms. Honsberger failed to do so, the trial court erred in admitting the 2002 will to probate.”   Brennan at 416-417.

Before filing for the administration of an estate where one does not have the original last will and testament, it is critical to have supporting witnesses who can not only prove up the proper execution of the document, but also its contents. This is often a difficult task.