ORIGINAL WILL OR COPY?
The original of the Will, and not just a copy, is extremely important.
Most states require the original Will to be filed with the Clerk of Court, before probate can even be started. A diligent search needs to be made to locate the original Will.
WHAT IF AN ORIGINAL OF THE WILL CAN’T BE FOUND?
If an original Will cannot be found, most states will have a procedure allowing the Will to be re-established. But not having the original makes the probate that much more difficult to begin. The circumstances that will allow for the Will to be re-established vary from state to state.
Florida law relating to filing the original Will:
Must file the original Will: In Florida an original Will should be filed by the “custodian” of the original within 10 days. Florida Statute Section 732.901.
An example is the case of two sisters, Rossen/Bilchik, where the trial judge ordered sanctions of $2,500.00 for the failure to deliver the original Will to the clerk of Court. While there was a reversal of part of the sanctions because of a lack of hearing notice, it is clear that Florida courts will enforce the requirement to deliver the original Will. Rossen v. Bilchik, 46 So.3d 1233 (Fla. 4th DCA 2010).
Re-establishing a lost or destroyed Will:
Florida does allow for possibly re-establishing a lost original Will: Florida Statute Section 732.207. Florida requires a petition to re-establish a Will, where the original will cannot be found. Further, filing such a petition also requires two forms of proving the contents of the original Will. These two items of evidence can be either the testimony of two Will Witnesses, OR one Will witness and a copy of the Will (a copy made after the Will was fully signed is the usual method; but it may sometimes be possible to use a true and correct word processing copy —- maybe).
Copy of Will is not a photocopy:
Re-establishing a lost Will is difficult enough, but the difficulty is made much worse when the copy available is unsigned or not a photocopy. For example, in In Re Estate of Parker, the copy was unsigned and not a photocopy. The court held it could not be probated because it was not an “identical” copy. There had been some inconsequential address changes of beneficiaries. (382 So.2d652 (Fla. 1980)).
In contrast, in Kero v. DiLegge, the court allowed probate of an unsigned photocopy plus the testimony of one Will witness. (591 So.2d 675 (1992)).
Original Will in possession of the decedent: If the original Will was in the possession of the decedent Florida law applies a presumption that the decedent revoked the Will by destroying it, or throwing it away. “Presumption” means that the Will can be admitted to probate anyway, PROVIDED THAT there is evidence of intent contrary to an intent to revoke the Will.
An example of evidence of contrary intent was the Estate of Helen Carville. She had drafted a Will disinheriting her daughter, and instead leaving her estate in trust for grandchildren. There was evidence that Helen’s feelings towards her daughter had softened in her final years, but there was no evidence that Helen intended to change her Will provisions disinheriting her daughter. The court re-established the Will. Upson v. Carville, 369So.2d 113 (Fla. 1st DCA 1979).
Note: Helen Carville’s probate evidence relating to intent was not the only factor present. Access to decedent’s Will was also at issue; see the next paragraph.
Access to original Will by a beneficiary: Why should there be a presumption of revocation of Will when a beneficiary may have gone into decedent’s residence and “deep-sixed” the Will? Indeed. Sometimes a family member who received less in the Will has access to where the Will is stored. When a beneficiary has such access it usually will overcome the presumption that the Original Will was revoked. Overcoming the presumption of revocation does not automatically mean that the Will copy will be admitted. Evidence of intent and other circumstances surrounding how the Will was stored can be taken into account by the court.
The estate of Mary Walton is an example of a beneficiary having access to where the Will was stored. And the original Will mysteriously disappearing.
“ Further, the existence of persons with an adverse interest in destroying a will who have an opportunity to do so, may serve to rebut the presumption that the will has been revoked.” Quoting the Third District Court of Appeals in Walton v. Walton, 601 So. 2d 1266 (Fla. 3d DCA 1992).