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How do you prove a lost or stolen will in Florida?

Posted June 25, 2016 in Florida Probate Litigation

How do you prove a lost or stolen will in Florida?

The Persante Law Group handles probate litigation matters in Pinellas, Pasco, and Hillsbrough counties. If you would like a free consultation to discuss a potential will contest, please do not hesitate to contact our firm at (727) 796-7666.

Who has the burden of establishing the lost will?

The proponent of a will has the burden to establish the formal execution and attestation of the will. Fla. Prob. R. 5.275.

What are the elements of proving a lost will?

There are essentially two steps to proving a lost or stolen will. In establishing a lost or stolen will, a proponent must prove:

(1) the contents of the will; and,

(2) that the will was executed with the proper formalities.

Proving the Contents of the Will:

In order to establish a lost or destroyed will, the petitioner must establish the contents of the will in accordance with Section 733.207, Florida Statutes, which provides as follows:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

§ 733.207, Fla. Stat. (2015).

This means that if there is a copy of the signed will, only one witness is necessary. But, if no one is able to find a copy of the old will, two disinterested witnesses are necessary. 

Proving the Will was executed with the proper formalities

A petitioner must also prove that the document was executed with all of the formalities set out in section 732.502, Florida Statutes. The statute requires that every will be in writing and executed as follows:

732.502 Execution of wills.—

Every will must be in writing and executed as follows:

(1)(a) Testator’s signature.—

     1. The testator must sign the will at the end; or
     2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.

(b) Witnesses.—The testator’s:

     1. Signing, or
     2. Acknowledgment:

          a. That he or she has previously signed the will, or
          b. That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.

(c) Witnesses’ signatures.—The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

 

Contact Us:

The Persante Law Group brings actions to invalidate wills. If you believe that you may need legal assistance regarding a Florida probate litigation matter, please contact us at (727) 796-7666.

About PersanteZuroweste

PersanteZuroweste has established a reputation as prominent trial lawyers serving clients throughout Florida. Our office is conveniently located to the Clearwater, St. Petersburg, and Tampa Bay communities.