What Happens When Nobody Can Find Your Will

Even when a person creates a will, it is possible that nobody will be able to find that will when the testator passes away. Fortunately, Florida law allows for the contents of a will or a codicil (an addition, supplement, or amendment to a will) to be proven even if the will cannot be found. Fla. Stat. § 733.207 provides that the contents of a will that was lost or destroyed can be proven if either: (1) two disinterested witnesses testify as to the contents of the will, or (2) a correct copy of the will is provided and one disinterested witness testifies as to the contents of the will.

Florida courts have looked at the various methods of fulfilling these requirements, such as whether a handwritten draft of a typewritten original qualifies as a correct copy (which it does not-there must be a double of an original instrument, such as a carbon copy). Most recently, in the case Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012), a Florida court looked at whether a computer-generated copy of a codicil printed from the attorney’s office computer qualified as a correct copy. Although the Probate Court decided that the computer copy was a draft, and therefore not a correct copy as required by the Florida Statutes, the Second District Court of Appeal disagreed. The Second District Court stated that because the office assistant who prepared the codicil that was lost testified that the computer copy was identical to the copy that was given to the testator, the computer copy was a correct copy. The reason that a computer copy can be a correct copy is that the computer copy would be indistinguishable from the original (except, of course, for the signature.) Although the person arguing against using computer copies argued that anybody could easily alter a document on a computer, the Second District Court stated that this was not a sufficient reason to reject the use of a computer copy of a will altogether, especially since computer documents can be examined to determine whether they have been altered.

The Second District Court of Appeal also discussed who qualified as a “disinterested witness” under Fla. Stat. § 733.207. In order to be able to testify as to the will or codicil and verify its contents, the court required that the witness: (1) had firsthand knowledge of what was in the will or codicil when the testator signed the document, and (2) that the witness actually read the document that was signed. It is not sufficient if the witness saw the will before it was signed, or if the witness witnessed the signing of the document without actually reading it.

If you or someone you know has recently lost someone and cannot find that person’s will, it is important to contact an attorney about how to move forward with administering that person’s estate. The lawyers at Chepenik Trushin LLP are experienced in probate matters, and are ready, willing, and able to answer any questions that you may have concerning what steps you should take. Please do not hesitate to contact us.

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