You have a sealed copy of your mother’s will for safekeeping. You mother has recently died and you are at her house looking for the original will. After your best efforts to locate the original will, the original will is nowhere to be found. You are then probably wondering if you can use a copy of the will in the same manner as an original. That depends.
Sometimes a copy can be admitted to probate if it is a “correct” copy. The Second District Court of Appeal in Smith v. DeParry has found that photocopies and unaltered computer copies can be considered a “correct” copy if other statutory requirements are met and presumptions are overcome.
The Florida Probate Code provides that a valid Florida will is one that is in writing, signed by the testator or a proxy in the testator’s presence and at the testator’s direction and signed by two witnesses who have signed the will in the presence of the testator at the time he or she executed the will and in the presence of each other.
The person who wants to admit a copy of the will as the original has the burden of introducing relevant evidence to overcome the presumption that when an original will cannot be located after the death of the testator, it is presumed to have been destroyed by the testator with the intent to revoke it.
Relevant evidence includes introducing a copy of the lost will and testimony of the witnesses to the will.
In particular, section 733.207 of the Florida Statutes states that “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.”
A beneficiary is considered an interested person. In essence, anyone who stands to gain financially from the will is an interested person who is not eligible to testify about the specific content of the will.
Usually an attorney who drafted the will would be considered a disinterested witness. The attorney would be able to testify about the decedent’s true intent.
So if you can’t find the original will, the best thing to do is not to panic but to consult an attorney about whether your circumstances are such which warrant the admission of the copy of the will into probate. If not, the decedent’s estate will be administered pursuant to Florida’s intestacy laws.