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Can a Missing Will Go Through Probate in Florida?

Written by Jeffrey Skatoff • January 25th, 2010

Probate Litigation,  

In probate proceedings, it is not unusual for the original of the will to be missing, and only a copy of the will can be located.  Florida law allows the copy of the will to be probated, but any person adversly affected by the copy can challenge the admission of the copy of the will to probate. 

It is well-settled under Florida law that evidence that a testator's will was in his possession prior to death and cannot be located subsequent to death gives rise to a rebuttable presumption that the testator destroyed the will with the intention of revoking it. In re Estate of Carlton, 276 So.2d 832, 833 (Fla.1973).

To order to rebut the presumption that the will was destroyed, Florida courts have permitted a variety of evidence:

In several cases, Florida courts have found the presumption of intentional revocation to be rebutted by a showing of: 1) evidence that a person with an adverse interest, and the opportunity, may have destroyed the will, see In re Estate of Washington, 56 So.2d at 547; Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla. 5th DCA 1996); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979); 2) evidence that the will was accidentally destroyed, see In re Estate of Carlton, 276 So.2d at 833 (presumption was rebutted where decedent repeatedly spoke of his will and his intention to leave his estate to the petitioner, although the decedent's safe was found waterlogged and the papers inside turned to “mush”); 3) evidence that the original will had been seen among the decedent's papers after her death, see Silvers v. Estate of Silvers, 274 So.2d 20 (Fla. 3d DCA 1973); and 4) evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the will, see In re Estate of Niernsee, 147 Fla. 388, 2 So.2d 737 (1941).

Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA  2008).  The use of presumptions and the ability to rebut them is an integral part of Florida probate procedure (see, for example, the presumption of undue influence).