When someone dies and the original will cannot be found, Florida law does not simply treat the estate as if no will ever existed. Under certain conditions, a lost or destroyed will can still be admitted to probate. However, the process is far more complex than standard probate administration, and the legal requirements are strict.
Florida Statutes Section 733.207 and Florida Probate Rule 5.510 govern the establishment and probate of lost or destroyed wills. These provisions reflect a careful balance between honoring a decedent’s testamentary wishes and protecting against fraud. Whether you are trying to probate a lost will or defending against one, understanding how Florida courts handle these cases is essential.
The Presumption of Revocation
One of the most important principles in Florida lost will law is the presumption of revocation. When an original will that is known to have existed cannot be located after the testator’s death, Florida law presumes the testator destroyed it with the intent to revoke it. Brennan v. Honsberger, 101 So. 3d 415, 416 (Fla. 5th DCA 2012); In re Parker’s Estate, 382 So. 2d 652, 653 (Fla. 1980).
As the Third District Court of Appeal explained in In re Estate of Hatten, 880 So. 2d 1271, 1274 (Fla. 3d DCA 2004), when a decedent who made a will dies and the will cannot be found among the decedent’s personal papers or other logical locations such as a safe deposit box or family lawyer’s office, a presumption arises that the decedent destroyed the will with the intention of revoking it.
This is not a mere inference. Courts have described the presumption as “strong,” requiring the proponent of the lost will to come forward with competent, substantial evidence to overcome it. In re Baird’s Estate, 343 So. 2d 41 (Fla. 4th DCA 1977). The presumption requires a finding of revocation unless the proponent presents evidence of a competent and substantial nature justifying a finding that the will had not been revoked.
Does the Testator’s Possession of the Will Matter?
Some Florida cases have stated that the presumption of revocation arises specifically when the will was in the testator’s possession prior to death and cannot be located afterward. Balboni v. LaRocque, 991 So. 2d 993, 994 (Fla. 4th DCA 2008); In re Estate of Musil, 965 So. 2d 1157, 1158 (Fla. 2d DCA 2007).
The Third District Court of Appeal addressed this directly in Schultz v. Estate of Roach, 549 So. 2d 1156 (Fla. 3d DCA 1989), holding that the presumption of intentional revocation arises only where the original will was in the possession and control of the decedent. Where an attorney retained the original will and the testator only received a copy, the court found the presumption did not apply. As the court noted, a lawyer’s failure to produce a will entrusted to him does not give rise to any presumption of revocation.
However, even when the presumption does not apply because the testator was never in possession of the original will, the proponent must still satisfy the statutory requirements of Section 733.207 to admit the will to probate. The Florida Fifth District Court of Appeal confirmed this principle in Pilak v. Reigel, No. 5D2025-0269 (Fla. 5th DCA Feb. 6, 2026), a case handled by our firm, holding that regardless of whether the presumption of revocation arose, the proponent of a lost will must still comply with the statutory requirements for establishing its contents.
Statutory Requirements Under Section 733.207
Florida Statutes Section 733.207 provides the framework for establishing the contents of a lost or destroyed will. The statute states:
“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.”
This creates two alternative paths for proving the contents of a lost will:
First, if no copy of the will exists, the proponent must present the testimony of two disinterested witnesses who can attest to the specific contents of the will. Second, if a correct copy of the will is available, only one disinterested witness is required to verify the copy’s accuracy. In either case, the witness testimony must address the actual contents of the will, not merely the fact that a will was executed.
What Qualifies as a “Correct Copy”?
The Florida Supreme Court strictly defined “correct copy” in In re Parker’s Estate, 382 So. 2d 652 (Fla. 1980). The Court held that “correct copy” means a copy conforming to an approved or conventional standard, requiring an identical copy such as a carbon or photostatic copy. A draft, even if it accurately reflects the contents of the lost will, does not qualify as a correct copy.
The Fourth District Court of Appeal expanded on this in In re Estate of Kero, 591 So. 2d 675, 677 (Fla. 4th DCA 1992), finding that an unsigned carbon copy of a lost will constituted a correct copy for purposes of proving the content of the lost original.
Importantly, a correct copy does not need to contain signatures. As the Second District explained in In re Maynard’s Estate, 253 So. 2d 923 (Fla. 2d DCA 1971), the correct copy is required for proving the actual contents of the original will, not for proving execution, so the copy need not bear the signatures of the testator or subscribing witnesses.
Who Qualifies as a “Disinterested Witness”?
The Second District Court of Appeal provided the definitive interpretation of “disinterested witness” in Smith v. DeParry, 86 So. 3d 1228, 1235 (Fla. 2d DCA 2012). The court held that a disinterested witness is one who has no private interest in the matter at issue and no stake in the outcome of the proceeding.
This is distinct from the broader concept of an “interested person” under Florida Probate Code Section 731.201(23). A personal representative is not automatically disqualified from testifying simply because of that fiduciary role, but must be evaluated based on whether they have an actual personal interest in the outcome. In Smith, both co-personal representatives were found to be interested witnesses because one stood to gain as trustee of a pet trust and the other faced potential liability for losing the codicil.
Beneficiaries under the will are generally considered interested witnesses because they have a direct stake in whether the lost will is admitted to probate. Similarly, intestate heirs who would inherit if the will is not probated are not disinterested in the outcome.
The Witness Must Know the Contents of the Will
A critical and frequently misunderstood requirement is that the disinterested witness must be able to testify about the specific contents of the will, not merely that a will was executed. The Fifth District Court of Appeal emphasized this in Brennan v. Honsberger, 101 So. 3d 415, 417 (Fla. 5th DCA 2012), where the proponent provided a correct copy of the lost will and two witnesses testified to its execution, but neither witness had any knowledge of the will’s contents. The court held the statutory requirements were not met.
Likewise, in Brennan v. Estate of Brennan, 40 So. 3d 894, 897 (Fla. 5th DCA 2010), the court found that witness affidavits merely stating that the witnesses saw the decedent execute the will and signed as witnesses immediately thereafter were insufficient to admit a lost will. The testimony must go beyond execution to address what the will actually said.
Burden of Proof on the Proponent
The proponent of a lost or destroyed will bears the burden of proving that the will was not revoked by the testator. The standard is competent substantial evidence. In re Parker’s Estate, 382 So. 2d at 653; Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996).
The Fifth District clarified in Lonergan that circumstantial evidence is sufficient to meet this burden. Direct evidence is not required. Evidence that may help overcome the presumption includes testimony that the decedent expressed an ongoing intent for the will to remain in effect, evidence that a third party may have destroyed or concealed the will, evidence that the testator did not have access to the original will, or evidence regarding the circumstances under which the will was lost.
However, the evidence must be substantial. As the Fourth District held in In re Baird’s Estate, 343 So. 2d 41 (Fla. 4th DCA 1977), a showing that a will was in the decedent’s possession and cannot be found creates more than a mere permissible inference of revocation. It requires a finding of revocation unless the proponent comes forward with evidence of a competent and substantial nature to justify a finding that the will had not been revoked.
Procedural Requirements Under Probate Rule 5.510
Florida Probate Rule 5.510 establishes mandatory procedural requirements for lost will proceedings. The rule provides that no lost or destroyed will shall be admitted to probate unless formal notice has been given to those who, but for the will, would be entitled to the property devised under the will. This notice requirement protects the interests of intestate heirs who would inherit if the will were not admitted.
The rule also requires that the testimony of each witness in the proceeding be reduced to writing and filed. This preserved testimony may be used as evidence in any subsequent will contest if the witness has died or moved from the state. Additionally, any final order admitting the will to probate must state the full terms and provisions of the will.
Lost will proceedings are considered adversary proceedings under the Florida Probate Rules. As the Third District confirmed in Anderson v. Estate of Quintero, 388 So. 3d 938 (Fla. 3d DCA 2024), this classification makes the Florida Rules of Civil Procedure applicable, including post-judgment motions under Rule 1.540(b) for newly discovered evidence.
Consent and Waiver Do Not Replace Statutory Proof
An important question that arises in lost will cases is whether interested parties can consent to or waive the statutory proof requirements. Florida law is clear: they cannot.
Section 733.207 and Rule 5.510 establish substantive evidentiary requirements that must be met regardless of whether the parties agree to the will’s admission. Consents and waivers signed by beneficiaries or heirs do not substitute for the testimony of disinterested witnesses or otherwise satisfy the statutory burden of proof.
The Fifth District Court of Appeal addressed this directly in Pilak v. Reigel, No. 5D2025-0269 (Fla. 5th DCA Feb. 6, 2026), a case handled by Zoecklein Law, P.A. In that case, the trial court admitted a lost will based on consents and waivers signed by the intestate heirs years earlier, even though the statutory proof requirements of Section 733.207 had not been met. The Fifth District reversed, finding multiple errors.
The consents and waivers at issue had never been filed in or accepted by a court, nor was the underlying petition ever filed. The consents did not waive the parties’ right to challenge the will or the proponent’s obligation to prove the will under the statute, and they were withdrawn before the proponent formally filed the petition to establish the lost will. The court also noted that consents and waivers do not provide testimony about the specific contents of the will, as required by Section 733.207, and that the parties who signed the consents were not disinterested witnesses because they had an interest in the outcome of the proceeding. See also In re Ballett’s Estate, 426 So. 2d 1196, 1199 (Fla. 4th DCA 1983) (finding that a stipulation to admit a will to probate did not constitute a waiver of objections).
Electronic Wills and Lost Will Law
Florida Statute Section 117.245, enacted in 2019 and amended effective January 1, 2022, addresses electronic wills executed through remote online notarization. The statute provides that if the required audio-video recording of an electronic will’s execution cannot be produced by the notarization service provider, online notary public, or qualified custodian, the electronic will is treated as a lost or destroyed will subject to Section 733.207. This extends the traditional lost will framework into the digital age and creates an additional category of cases where these rules apply.
Practical Considerations
Lost will proceedings present unique challenges for both proponents and opponents. For those seeking to probate a lost will, the most common obstacles are finding a disinterested witness who can testify to the will’s specific contents and obtaining a correct copy. Even when both are available, the proponent must still overcome the presumption of revocation with competent substantial evidence if the testator had possession of the original.
For those contesting the admission of a lost will, the presumption of revocation is a powerful tool. The proponent bears the burden of proof, and strict compliance with Section 733.207 is required. Courts have consistently refused to admit lost wills where the statutory requirements are not met, regardless of other equitable considerations.
Whether you are the proponent or opponent of a lost will, having experienced legal counsel is critical. These cases involve complex evidentiary requirements, procedural rules, and strategic considerations that can determine whether millions of dollars in assets pass under a will or through intestacy.
Contact a Florida Probate Litigation Attorney
If you are involved in a dispute over a lost or destroyed will in Florida, Zoecklein Law, P.A. can help. Our firm has direct experience litigating lost will cases in Florida courts, including the successful appeal in Pilak v. Reigel before the Fifth District Court of Appeal. We represent both proponents seeking to establish lost wills and parties defending against them.
