IN RE ESTATE OF JAMES THOMAS "TOM" GROSS, DECEASED. MRS. J. R. GROSS, APPELLANT,
v.
WILLIE MAE GROSS AND JOHN RUFF, AS ADMINISTRATOR OF THE ESTATE OF JAMES THOMAS "TOM" GROSS, DECEASED, APPELLEE
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Destruction of a will by another person at the testator's direction, but not in the testator's presence, does not constitute revocation under Florida law.
A copy of a will was re-established and admitted to probate after the original was destroyed by another person at the testator's direction, but not in…
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This appeal is from an order of the county judge’s court in Dade County which granted a petition to re-establsh a copy of a will, and admitted it to probate. The original of the will was destroyed in Birmingham, Alabama, by a person acting at the direction of the testator who was then in Miami, Florida.
*862The determinative question is whether destruction of the will, not in the presence of the testator, revoked it. We hold that it did not. The Florida Probate Law, § 731.14(1), F.S.A., provides:
“A will may be revoked by the testator himself or by some other person in his presence and by his direction, by burning, tearing, canceling, defacing, •obliterating or destroying the same, with the intent and for the purpose of revocation.”
Under the provisions of the statute, the burning of the will which took place at the direction of the testator but not in his presence did not revoke it, and the order of the county judge in recognizing and reestablishing a copy thereof and admitting it to probate was eminently correct.
Appellant contends we should hold revocation occurred because the statute was substantially complied with. That •contention is without merit. Substantial ■compliance is not sufficient. The directions of the statute must be followed and its conditions met. As stated in 57 Am.Jur., Wills § 493, p. 343:
“ * * * But where a statute prescribes the method and acts by which ■a will may be revoked, no acts other than those mentioned in the statute are to operate as a revocation, no matter how clearly appears the purpose of the testator to revoke his will and his belief that such purpose has been accomplished.”
A further contention of the appellant was that appellees did not rebut the presumption that destruction of the will was by the testator, with intent to revoke, citing e. g. In re Washington’s Estate, Fla.1952, 56 So. 2d 545. The argument lacks merit. There is no room to presume a fact contrary to the admitted fact that it was not the testator who destroyed the will.
Affirmed.
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In re Est. of Adrian Bancker, 232 So. 2d 431 (Fla. 4th DCA 1970)…ministration of Estates in Florida, 3d Ed., Sec. 88; 26 F.L.P., Wills, § 94. The requirements for a valid revocation of a will must be strictly observed. In re Estate of Shifflet, Fla.App.1964, 170 So. 2d 96, and In re Estate of Gross, Fla.App.1962, 144 So. 2d 861. This interpretation is given further support in view of the fact that the phrase “in his presence” was added to the statute by amendment in 1933. Thus, it appears that the legislature sought to require the destruction to be in the actual presence o…
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In re Est. of Florence I. Shifflet v. Shifflet, 170 So. 2d 96 (Fla. 3d DCA 1964)…ne of which constituted the end of the will.3 Accordingly, the attempted partial revocation was ineffective and the will as originally written was entitled to probate.4 The order appealed is affirmed. Affirmed. . In re Gross’ Estate, Fla.App.1962, 144 So. 2d 861. . Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940). . For an interesting discussion of what constitutes the end of a will, see Atkinson, Wills § 64 (2d Ed. 1953); 2 Bowe-Barker: Page, Wills, § 19.57 (1960). .Trotter v. Van…
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Silvers v. Est. of Easter Russell Silvers, 274 So. 2d 20 (Fla. 3d DCA 1973)…ath, a rebut-table presumption arises that it was destroyed by the testator for the purpose of revocation. In re Evers’ Estate, 160 Fla. 225, 34 So. 2d 561; In re Washington’s Estate, Ela.1952, 56 So. 2d 545. Cf. In re Estate of Gross, Fla.App.1962, 144 So. 2d 861; In re Estate of Yost, Fla. App.1960, 117 So. 2d 753. . An appellate court will not interfere with the findings of fact or the conclusions of law reached by the probate judge on the basis of such factual findings unless there is an absence of subst…
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- In re Washington's Estate, 56 So.2d 545 (Fla. 1952)