ROGER DAUL, DOLORES E. CARMICHAEL AND LOIS MAE NIES, APPELLANTS,
v.
HOWARD GOFF, PERSONAL REPRESENTATIVE OF THE ESTATE OF SENARITA MANDERS, APPELLEE
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The Florida Court of Appeal reversed the admission of a lost will to probate because the petitioner failed to present sufficient evidence to overcome the presumption that the testator destroyed and revoked the will. When a testator who had custody of the will dies and the will cannot be located, a presumption of revocation arises, and the burden falls on the proponent to prove by competent, substantial evidence that the will was not destroyed.
The court held that the evidence presented was insufficient to overcome the presumption of revocation. While Carmichael had opportunity to destroy the will, mere opportunity alone is insufficient; the evidence must show suspect behavior or other factors indicating the testator did not destroy the will. The testimony established only innocent activities and contained no evidence of suspicious conduct that would rebut the presumption.
[1] When a testator has had their will in their custody and it cannot be located after their death, a presumption arises that the testator destroyed it with the intention of…
[2] The proponent of a lost will bears the burden of presenting competent substantial evidence to overcome the presumption of revocation.
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Join FLexlaw to unlock all legal intelligence“When a testator has her will in her custody, and it cannot be located after her death, a presumption arises that, in the absence of other evidence, she has destroyed it with the intention of revoking it.”
Establishes the foundational presumption of revocation that applies when a will in the testator's custody is lost
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Join FLexlaw to unlock all legal intelligenceIn 1992, Senarita Manders executed a will excluding her children and naming the Florida Sheriffs' Youth Ranch as beneficiary. The original will could …
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NORTHCUTT, Judge.
Mr. Daul, Ms. Carmichael and Ms. Nies, the children and heirs of Senarita Man-ders, challenge the circuit court’s admission of a copy of Ms. Manders’s lost will to probate. We reverse because Mr. Goff, who petitioned to establish the lost will, did not present competent substantial evidence sufficient to overcome the presumption that the original will had been revoked.
In 1992, Manders executed a will excluding her children and naming the Florida Sheriffs’ Youth Ranch as the beneficiary of her estate. Manders’s attorney testified that he had given her the original will, and that she had signed a receipt for it. But when she died, the original will could not be found. When a testator has had her will in her custody, and it cannot be located after her death, a presumption arises that, in the absence of other evidence, she has destroyed it with the intention of revoking it. See In re Estate of Parker; 382 So. 2d 652 (Fla.1980); In re Estate of Kuszmaul, 491 So. 2d 287 (Fla. 4th DCA 1986).
Where the presumption arises, as in this case, the proponent of the will has the burden of overcoming it. Goff was required to present competent substantial evidence that would justify a finding that the will had not been revoked. See In re Estate of Baird, 343 So .2d 41, 43 (Fla. 4th DCA 1977). The evidence showed that in March 1998 Manders became ill and asked Carmichael to assist her. Several times between then and Manders’s death in July of that year, Carmichael traveled from her home in Michigan to Florida. During these visits she accompanied Manders to the bank and helped her inventory the contents of her safe deposit box. Carmichael also cleaned her mother’s home while she was in the hospital. She admitted that her mother gave her some documents, which she took back to Michigan.
While these facts could show that Carmichael had the opportunity to destroy Manders’s will, mere opportunity is insufficient to rebut the presumption of revocation. It is only one factor to be considered. See In re Estate of Parson, 416 So. 2d 513 (Fla. 4th DCA 1982) (noting evidence showed that parties adverse to the will had access to the decedent’s home before and after her death; this fact, combined with conflicting testimony about whether testator still wished to give property to the beneficiary named in the will, was insufficient to overcome the presumption of revocation).
In re Estate of Washington, 56 So. 2d 545 (Fla.1952), illustrates the type of evidence that, when coupled with the opportunity to destroy the will, will overcome the presumption of revocation. There, a witness testified that the decedent had confirmed her intention to leave her estate to the beneficiary named in her will several days before she died. Immediately after her death, two brothers who were not beneficiaries under the will asked about the decedent’s deeds and where she kept them. They went to her home and ransacked it. A jar where the decedent kept her important papers was seen just before her death. It was missing after the brothers departed. Moreover, neither of them explained their actions in court.
The testimony in this case did not intimate that Carmichael engaged in suspect behavior; it established only that she was in her mother’s home alone. She had gone to the home to clean it and to get items such as glasses and dentures that her mother needed while she was in the hospital. Moreover, Carmichael testified that she had not found or destroyed her mother’s will. Nothing suggested that Carmichael had access to her mother’s safe deposit box when Manders was not present. The evidence in this case simply is insufficient to overcome the presumption.
We reverse the order admitting the photocopy of Manders’s lost will to probate. We remand with directions that Manders’s estate be administered as an intestate succession.
PARKER, A.C.J., and DAVIS, J., Concur.
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In re Est. OF Ladislav Louis Musil v. Frazier, 965 So. 2d 1157 (Fla. 2d DCA 2007)…robate court found that Ms. Douglass had failed “to overcome the presumption that when the original of the last will and testament of a decedent cannot be found after [his] death it is presumed to have been revoked by destruction.” See Daul v. Goff, 754 So. 2d 847, 848 (Fla. 2d DCA 2000) (explaining the rebuttable presumption and the movant’s burden to overcome it). Based on this finding, the probate court denied Ms. Douglass’ petition to establish the lost or destroyed will dated August 8, 1981, and conclude…
Authorities Cited
- In re Washington's Estate, 56 So.2d 545 (Fla. 1952)
- In the Estate OF Arlethia Parson v. Hendley, 416 So. 2d 513 (Fla. 4th DCA 1982)
- Frazier v. State, 343 So. 2d 41 (Fla. 1st DCA 1976)
- In re Est. of Ruth W. Parker, 382 So. 2d 652 (Fla. 1980)
- In re Est. OF Clifford P. Kuszmaul, 491 So. 2d 287 (Fla. 4th DCA 1986)