Sunday, May 06, 2012


If a last Will is lost or destroyed, it can still be offered for probate. Fla.Stats. §733.207 provides that the specific content must be proved by two disinterested witnesses, or if a “correct copy” is provided, by one disinterested witness.

In regard to what is a “correct copy,” Florida case law suggests that the copy has to be a carbon copy or photocopy. In re Estate of Parker, 382 So. 2d 652 (Fla. 1980). However, in a recent Florida case, an unsigned word processor copy taken from the office of the preparing attorney was also found to be a correct copy. The 2nd DCA determined that the term correct copy was not limited to carbon copy or photocopy. This will be good news in many situations since most wills and codicils are prepared on computers and the computer files retained indefinitely.

Even though the court found that the computer copy of a lost codicil was a correct copy, it was not admitted to probate since there was no disinterested witness that could attest to its content. The court  made some interesting pronouncements regarding who is a disinterested witness in reaching its conclusion, including:

     A. The attorney who witnessed the signing was not “disinterested” since he risked malpractice liability if the codicil was not admitted because he was the one who lost the codicil;

     B. The office assistant who prepared the codicil could testify as to the contents, but could not be a “witness” for purposes of the above statute since she did not witness the signing of the codicil (and thus could not be certain that what she prepared on her computer was the same as what was signed by the decedent);

     C. A personal representative is not prevented from serving as a disinterested witness under the above statute, even though he or she is classified as an interested person under the Probate Code. In the case, however, both witnessing personal representatives were deemed to have an interest in the outcome and thus could not be a disinterested witness under the facts; and

     D. A third party witness to the signing without an interest in the outcome will not qualify as a disinterested witness under the above statute if that witness had no knowledge of the actual contents of the will or codicil that was signed.

So who make good witnesses in a law office environment that can be used in a lost or destroyed will situation? One would be an assistant or associate who drafted the document, but only if he or she witnessed the signing. So this may be a good reason to have that person act as one of the witnesses. The attorney who prepared or reviewed the will (if different from the above assistant or associate) should also qualify as a disinterested witness since he or she will have knowledge of the contents if he or she witnesses the signing  - but only if  that attorney was not responsible for the will or codicil being lost.

LANCE SMITH and THOMAS ALLEN, as Co-Personal Representatives of the Estate of Scott P. Smith, Deceased, Appellants, v. ASTRID DePARRY, as Guardian ad Litem for Scott P. Smith, III, 2nd DCA, Case No. 2D11-1851 (May 2, 2012).

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