CLARENCE E. SILVERS, APPELLANT,
v.
ESTATE OF EASTER RUSSELL SILVERS, APPELLEE
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In this probate appeal, the court upheld the trial court's decision to admit a lost 1962 will to probate under Florida law, rejecting the appellant's argument that a missing will presumes revocation. The court found sufficient evidence that the will still existed at the decedent's death, making application of the presumption of revocation improper.
The court affirmed the trial court's admission of the lost 1962 will to probate. The court held that where evidence suggests the will existed at the time of death rather than being destroyed by the testator, the presumption of revocation does not apply, and the lost will may be established and probated if other evidence is sufficient under § 732.27.
[1] When a will known to have been made and retained in the possession of a testator is not found after his death, a rebuttable presumption arises that it was destroyed by th…
[2] Evidence of a will's existence at the time of the decedent's death can rebut the presumption of revocation arising from the will's absence after death.
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“When a will known to have been made and retained in the possession of a testator is not found after his death, a rebut-table presumption arises that it was destroyed by the testator for the purpose of revocation.”
Establishes the general legal principle that creates a presumption of revocation for missing wills, which appellant relied upon.
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Join FLexlaw to unlock all legal intelligenceThe decedent executed a will in 1962 naming her sisters as beneficiaries, keeping the original and sending a carbon copy to her lawyer. When she died …
The full statement of facts, procedural history, and disposition for this case are member content.
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This is an appeal from an order of the county judges’ court of Dade County by which a lost will was established and admitted to probate under § 732.27 Fla.Stat., F.S.A. The principal asset of the decedent was her residence.
The appellant is the surviving husband of the decedent. They were married in 1960. The decedent made a will in 1962, in which her sisters were named as the beneficiaries. She kept the original will and sent an executed carbon copy to the lawyer who had prepared it.
The decedent died in 1971. A search of the papers and effects of the decedent, made after her death by the lawyer, his secretary, and one of the decedent’s sisters, Julia E. Russell, failed to produce the 1962 will, but revealed a will which the decedent had made in 1950 (ineffective because of her subsequent marriage, by virtue of § 731.10 Fla.Stat., F.S.A.), and a will which had been prepared in 1965, but which had not been executed. The unsigned 1965 will *21was the same as that of 1962 except as to some personal property, furniture and furnishings, etc.
An administrator was appointed and probate of the estate by intestacy was commenced. Approximately seven months later the lawyer mentioned above located the carbon copy of the 1962 will in his files, together with the letter by which it had been forwarded to him by the decedent in 1962. About that time the sister Julia Russell, according to her testimony at the hearing, recalled that while visiting the sister in Chicago the decedent had mentioned that she had made a will and named the witnesses (being those on the 1962 will), and further recalled that in going through the papers of the decedent after her death she (Julia Russell) had seen the original of a 1962 will similar to the copy held by the attorney. The reason she gave for not having produced it, or revealing its existence after observing it, was that she had been looking for a 1965 will which was supposed to have been made.
Accepting that testimony as being credible and worthy of belief, as was the province of the trier of the facts, and as being sufficient to establish that the 1962 will was still in the possession of the decedent at the time of her death, the court admitted the “lost” will to probate.
The reliance of the appellant on the principle that when a will which was in possession of a decedent cannot be found after his death there is a presumption that it was revoked, is misplaced here, where, although the 1962 will was never produced, there was some evidence of its existence at the time of the death of the decedent, suggesting possibility of the will having become lost after death of the decedent.1
Assuming the will was still in the possession of the decedent when she died, the evidence otherwise was sufficient for the re-establishment and probate of the lost will under § 732.27 Fla.Stat., F.S.A.2
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Balboni v. LaROCQUE, 991 So. 2d 993 (Fla. 4th DCA 2008)…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). In the case at bar, the petitioners theori…
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In re Est. of Julia Kuhn, 286 So. 2d 276 (Fla. 3d DCA 1973)…pp.2d 434, 207 N.E. 2d 487 (1965); King v. Bennett, 215 Ga. 345, 110 S.E. 2d 772 (1959); In re Cabler’s Estate, 124 Okl. 275, 257 P. 757 (1927); Burton v. Wylde, 261 Ill. 397, 103 N.E. 976 (1913). See also Silvers v. Estate of Silvers, Fla.App.1973, 274 So. 2d 20. Accordingly, the order appealed is reversed and the cause is remanded with directions to enter an order denying the petition to admit the torn document to probate. Reversed and remanded. . There is no challenge on this appeal as to the applicabl…
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In re Est. of Charles A. Baird v. Arthur Schwab CTA of Estate of Charles A. Baird, 343 So. 2d 41 (Fla. 4th DCA 1977)…wing necessary to rebut the presumption but is rather to the effect that the will in question there was not really “lost” at all, but was contained in the “mush” found in the decedent’s waterlogged safe after his death. Silvers v. Estate of Silvers, 274 So. 2d 20 (3 DCA Fla. 1973) is to like effect.…
Authorities Cited
- In re Est. of Wm. F. Zimmerman v. Zimmerman, 84 So. 2d 560 (Fla. 1956)
- 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)
- In re Wider's Estate. Wider v. Wider, 62 So. 2d 422 (Fla. 1952)
- In re Est. of James Thomas "Tom" Gross v. Gross, 144 So. 2d 861 (Fla. 3d DCA 1962)
- City OF Hialeah v. Hous. Corp. OF Am., 244 So. 2d 444 (Fla. 3d DCA 1970)