What If The Original Will Can’t Be Found?

James M. Weaver, PA

You might think that producing a photographic copy of the Will would work, but it won’t. The reason is that the original will is presumed to be under the custody and control of the testator, and if the Will cannot be found, the presumption arises that the testator destroyed the Will. “Proving” a lost Will is usually difficult and expensive.

The lost Will’s contents must be proved by 2 disinterested witnesses, or if a photocopy of the Will is obtained bearing the decedent’s signature, then only one “disinterested” witness is required F.S. 733.207.

But who is a “disinterested” witness, and how much must the disinterested witness know about the contents of the will? There’s the rub. The beneficiaries may know, but they are not disinterested – they are very much interested.

Just recently we had a case where the decedent omitted his children and left everything to his grandchildren. One of his children was married to a spouse who had bad spending habits – the next business deal was sure to work, etc.

But, none of the decedent’s children could testify because they were all “interested” persons. Luckily, we found the decedent’s brother who had had multiple conversations with the decedent before his death in which the decedent expressed concern for his grandchildren’s college education. The witness flew down and gave testimony before the Probate Court that was credible and convincing. The Probate Court upheld the Will, entered an Order that the copy was authentic, and probate of that Will is currently under administration.