MARGARET SCHULTZ, APPELLANT,
v.
ESTATE OF MABEL C. ROACH, DECEASED, APPELLEE
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Margaret Schultz appealed the dismissal of her petition to probate a lost will of Mabel C. Roach. The court reversed, holding that the presumption of revocation for a lost will applies only when the original was in the decedent's possession and control, and here the evidence showed the attorney retained the original, not the decedent.
The presumption that a lost will was destroyed with intent to revoke arises only where the original will has been in the possession and control of the decedent. Because evidence showed the attorney retained the original and Roach never had possession of it, the presumption did not apply, and Schultz satisfied her burden of proving nonrevocation.
[1] A presumption that a lost will was destroyed with the intention to revoke arises only when the original will was in the decedent's possession and control.
[2] A lawyer's inability to produce an original will entrusted to them does not, by itself, create a presumption of the will's revocation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The presumption that a lost will has been destroyed with the intention to revoke arises only where the original will has been in the possession and control of the decedent.”
Establishes the foundational rule that the presumption of revocation depends on the decedent having possessed the original will.
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Join FLexlaw to unlock all legal intelligenceMabel C. Roach died in 1986. In 1988, Margaret Schultz petitioned to probate an unexecuted conformed copy of Roach's will dated February 23, 1976, und…
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FERGUSON, Judge.
This is an appeal from an order dismissing a Petition for Establishment and Probate of a Lost or Destroyed Will and Appointment of a Personal Representative in the Estate of Mabel C. Roach.
Mrs. Roach died in 1986. Two years later, the petitioner Margaret Schultz requested the probate court to probate an unexecuted, conformed copy of the decedent’s will, dated February 23, 1976. Under the will, Schultz was named personal representative and the beneficiary of one-third of Roach’s residuary estate. The remaining two-thirds were to be divided equally between two grand nieces of the decedent.
Roach executed, published, and declared her will before three attesting witnesses. Schultz contends that the original was lost or destroyed without Mrs. Roach’s knowledge or consent and without an intent on her part to revoke the document. Schultz further testified that a copy of the will was found in the decedent’s safe deposit box shortly after her death.
The guardian of the property, acting for the decedent’s brother, filed a motion for involuntary dismissal of Schultz’s petition which the lower court granted on a finding that there was a failure to overcome the presumption in Florida law that the will was destroyed with the intention to revoke. We reverse.
The presumption that a lost will has been destroyed with the intention to revoke arises only where the original will has been in the possession and control of the decedent. In re Washington’s Estate, 56 So. 2d 545 (Fla.1952); In re Evers Estate, 160 Fla. 225, 34 So. 2d 561 (1948). See generally Annotation, Lost Will—Proving Nonrevocation, 3 A.L.R.2d 949 (1949).
Donald Dorrach, the attorney who prepared the will and served as one of the attesting witnesses, testified at trial that he could not remember delivering Mrs. Roach’s original will to her and that many of his files were lost or destroyed in several office relocations. He testified further that it was his customary practice to give the client a conformed copy and to retain the original. See In re Yost’s Estate, 117 So. 2d 753 (Fla. 3d DCA 1960) (lawyer’s failure to find and produce will entrusted to him does not give rise to any presumption of its revocation). No evidence was presented that the original will had ever been in the possession or control of the decedent.
Reversed and remanded with instructions to reinstate and grant the petition.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Lonergan v. Est. OF Ethel L. Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996)…. The proponent of admitting such a lost will to probate has the burden of introducing competent substantial evidence in order to overcome this presumption. In re: Estate of Sangenito, 631 So. 2d 1125 (Fla. 4th DCA 1994); Schultz v. Estate of Roach, 549 So. 2d 1156 (Fla. 3d DCA 1989); In re: Estate of Baird, 343 So. 2d 41 (Fla. 4th DCA 1977). The question presented in the instant case is whether the wife’s daughter, Wilbright, presented competent substantial evidence to rebut the presumption that the wife had…
Authorities Cited
- In re Est. of Carrie F. Evers v. Am. Legion Hosp. for Crippled Child., 160 Fla. 225 (Fla. 1948)
- In re Washington's Estate, 56 So.2d 545 (Fla. 1952)
- In re Est. of Minerva J. G. Yost v. Magee, 117 So. 2d 753 (Fla. 3d DCA 1960)