LOST WILLS IN FLORIDA; IMPORTANCE OF SAFEKEEPING
Under Florida law, when the original will cannot be located there is a presumption that the testator destroyed the will and intended to revoke it. Therefore, in order to prove the contents of the will the personal representative has the burden of producing evidence to overcome this presumption. Under F.S. §733.207, if the personal representative can produce a copy of the lost will, then in addition to providing the lost will, the personal representative will need the testimony of one disinterested witness (ie someone that is not entitled to any of the proceeds of the estate) to prove its content. However, the courts have held that affidavits are insufficient to prove the contents of a lost will. Therefore the only other way to prove its contents is by live witness testimony. In most cases this will be a significant hurdle. Suppose the decedent died in 2005, it is now 2015, more likely than not, the attorney that prepared the document will be unable to testify as to its content, let alone anyone else. This can become a very time consuming and expensive process in order to produce witnesses and conduct a “mini-trial”.