Handling a lost or destroyed will in Florida is one of the most complex and emotionally charged probate situations families face. Florida law starts from a skeptical position: if an original will cannot be found, the court may presume it was intentionally revoked. Overcoming that presumption is possible—but it requires evidence, precision, and a clear understanding of Florida probate rules.
This article explains what happens when a will is missing or destroyed, how Florida courts analyze intent, and what legal options executors and families have to move forward.
Florida’s Presumption of Revocation
Under Florida law, if an original will:
- Was last known to be in the possession of the testator, and
- Cannot be found after death,
the court applies a presumption of revocation—meaning the testator is presumed to have destroyed the will intentionally.
This presumption does not apply automatically in every case, but it sets a high bar for anyone attempting to probate a copy.
Proving the Contents of a Lost Will
To probate a lost or destroyed will in Florida, the proponent must prove:
- The will’s existence
- The will’s contents
- That the will was not revoked intentionally
Florida Statutes §733.207 governs these proceedings.
Evidence commonly used includes:
- A photocopy or digital copy of the will
- Drafts showing consistent dispositive intent
- Attorney testimony
- Notes or correspondence referencing the will
The more complete the copy, the stronger the case.
Witness Testimony Requirements
Florida law imposes strict witness standards.
To establish the contents of a lost will:
- Two disinterested witnesses must testify to the will’s contents
or - One disinterested witness plus a copy of the will
Interested witnesses (beneficiaries) are generally disfavored and may be challenged aggressively.
Courts scrutinize credibility closely—especially in contested estates.
Copy vs. Original Will: Why It Matters
Florida distinguishes sharply between originals and copies.
- Original will: Preferred and easiest to probate
- Copy of will: Admissible only with additional proof
- Unsigned drafts: Weak evidence unless corroborated
A signed copy is stronger than an unsigned one. A copy maintained by the drafting attorney often carries more weight than one found among personal papers.
Intentional vs. Accidental Destruction
Not all missing wills are revoked intentionally.
Common accidental scenarios include:
- Loss during relocation
- Fire, flood, or hurricane damage
- Misplacement by third parties
- Safe deposit box access issues
Evidence that rebuts revocation may include:
- Statements by the decedent affirming the will
- Lack of motive to revoke
- Continued reliance on the will’s terms
- Absence of a newer will
Florida courts evaluate the totality of circumstances, not isolated facts.
Electronic Wills in Florida
Florida now recognizes electronic wills, but with strict requirements.
Issues arise when:
- Electronic records are incomplete
- Custody is unclear
- Authentication fails
If an electronic will cannot be properly authenticated or accessed, the same revocation presumptions may apply.
Electronic wills reduce some risks—but create new evidentiary challenges if poorly stored.
Helpful Case Law (Illustrative Examples)
Florida courts have addressed lost wills in numerous cases, including:
- In re Estate of Washington: Emphasized burden of proof on proponent
- Stewart v. Johnson: Discussed presumption of revocation and rebuttal evidence
- In re Estate of Hatten: Highlighted witness credibility requirements
Case outcomes depend heavily on facts. No two lost-will cases are identical.
Preventive Measures That Actually Work
Most lost-will disputes are preventable.
Best practices include:
- Storing the original will with the drafting attorney
- Using fireproof and waterproof storage
- Informing executors where the will is kept
- Avoiding casual destruction of prior documents
- Coordinating electronic backups with clear custody
A will that cannot be found may be worse than no will at all.
What Happens If the Will Cannot Be Proven
If a lost will cannot be admitted:
- The estate proceeds under intestacy or
- A prior valid will may control
This can completely defeat the decedent’s intent—especially in blended families or complex estates.
Frequently Asked Questions
Can a copy of a will be probated in Florida?
Yes—but only with sufficient evidence and witness testimony.
Who has the burden of proof?
The person seeking to probate the lost will.
Does Florida presume revocation automatically?
Only if the will was last in the testator’s possession and cannot be found.
Are electronic wills safer?
They reduce some risks but create new ones if improperly managed.
Call to Action
Lost or destroyed wills place families at legal risk during an already difficult time. If you are facing this situation in Florida, do not assume the will is unenforceable—or that the outcome is inevitable. A Florida probate attorney experienced in lost-will proceedings can assess the evidence, challenge presumptions, and help protect the decedent’s true intent.
