Let's face it....things happen (like hurricanes) that cause original documents to be lost or destroyed. What happens when a family member dies in Florida and the family members cannot locate the original will?
In this scenario, families are grieving and become frustrated because no one can locate the Last Will & Testament. No one is contesting it exists and no one wants to challenge what it provides.
First, we must overcome the assumption that it was intentionally destroyed by the decedent. In Florida, there is a legal presumption that a will known to exist and in the possession of the testator which cannot be found has been destroyed by the testator. It is the job of the person who is the proponent of the lost will to prove this isn’t what happened. How?
Provide evidence that the testator wasn't capable of revoking the will while it was in his/her possession due to illness or incapacity; or
Present facts that show the will was lost without the decedent's approval (for example - the house flooded due to a hurricane).
The key is to provide the court with a copy of the original will. (Florida Probate Rule 5.5 10(b).) The copy may be the “best evidence available” as to the original will’s contents. In addition, two disinterested witnesses who saw the testator signing the will need to testify. "Disinterested" means they aren’t going to inherit anything if the lost will is admitted to probate. Both of these witnesses have to give sworn testimony, confirmed in a writing that’s filed in the court record, that the copy is a true duplicate of the original that they saw being signed. All of this evidence has the effect of countering the legal presumption that the testator destroyed the will intentionally.
Once the presumption has been countered, the lost will can be admitted to probate via the copy that has been provided. Probate of the duplicate can be granted now, assuming that there has been formal notice on those who, but for this Lost Will, would be entitled to inherit.
How do we help our clients in light of this potential issue?
We provide two disinterested witnesses and a notary for every signing.
We include contact information for these witnesses in the estate planning documents.
We give our clients the original signed documents.
We provide our clients with a thumb drive which contains copies of their signed estate planning documents.
We email our clients a copy of the signed documents so that they can easily forward them to other family members.
We maintain a copy of the signed documents in our document management program which is in "the cloud" and can be accessed by us from any computer that has internet service.
If you would like to schedule a meeting to discuss your estate planning needs, please contact Elan Kaney at Elan.Kaney@KaneyLaw.comor call us at (386) 677-7965.
If you are a Florida or Texas resident that has suffered due to Hurricane's Harvey and Irma, our hearts go out to you.