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A will contest is a lawsuit that happens when a beneficiary challenges a Last Will and Testament that has been presented to the probate court for the purpose of administrating a decedent’s estate. Essentially, one will has been offered for probate, and another party contends that the will offered is not valid or otherwise should not be admitted to probate. The adversarial proceeding to determine which will, if any, shall be admitted is sometimes colloquially called a will contest.

Family members, loved ones and other interested parties seeking to contest a will as NOT being a valid document do so in a formal adversary proceeding (the “will contest.”)  Family members, specifically children, siblings and spouses, commonly start the proceedings after believing they were supposed to inherit from a loved one, but seeing that a document describing different intentions has been filed in probate court.  The rightful beneficiary contests the will not out of their own personal desire to prevail and inherit their expectancy, but out of a desire to see that their loved one’s final wishes are carried out and that property should be distributed according to those wishes.

Many Florida will contests are based upon some kind of “undue influence” claim.  An undue influence claim is asserted against the probated will, with the party making the claim arguing that the new beneficiary did bad things (”unduly influenced”) in order to procure their inheritance under the new will.

As one court has defined it ( Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997)):

“When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” 

What happens if the prior Last Will and Testament has been destroyed? What remedies do family members have to fight against undue influence when there’s no actual will?


1. How Do You “Prove Up” a Destroyed Will?

Under Florida law, when the original of a will is missing, destroyed, or cannot be found, it is presumed that the testator destroyed the will with the intent to revoke it. Estate of Parker, 382 So.2d 652 (Fla. 1980). However, if evidence can be provided that the testator did not intend to revoke the document, the burden of proof shifts.  In order to accomplish this, two disinterested witnesses will be needed to testify about the specific content of the destroyed will. Florida Statute §733.207.

2. Is a will contest the only option available?

If the will contestants cannot provide sufficient admissible evidence to “prove up” the destroyed will’s contents with two disinterested witnesses, showing by clear and convincing evidence that the testator did not intend to revoke the will, are they stuck? The probate court will not have the destroyed will before it under Florida law, nor have the contents of the will been substantially proven. Does that mean the wrongdoer always gets to inherit under the phony will they procured?

No. In these situations, Florida law provides for a cause of action called “tortious interference with a testamentary expectancy.” Also see: DeWitt v. Duce, 408 So.2d 216 (Fla.1981).

Here, damages can be assessed against the defendant because of Florida’s longstanding equitable maxim “that no wrong shall be without a remedy.” Since the probate court cannot right the wrong of undue influence by probating the valid and correct Last Will and Testament, Florida law allows for a lawsuit to be filed for damages under tort law.  This cause of action is also sometimes called tortious interference with an inheritance.

The Case of the Disinherited Brother and the Disappearing Will

Consider the case of ln re Estate of Hatten, App. 3 Dist., 880 So.2d 1271 (2004).  A Florida woman named Louise Hatten had seven brothers and sisters.  Several years before her death, Louise showed her Last Will and Testament to one of her sisters, Antoinette.

In her will, Louise had expressly cut out (disinherited) her brothers Louis and George, as well as one of Louise’s nephews, Joseph. Each of these three men were left a single dollar by Louise.  (Louise explained that she was not leaving them anything in the will because they had borrowed money and never repaid it.)  The beneficiaries of the remainder of her estate, as named in the will, were Louise’s three sisters and one remaining brother.

During a vacation four years later, Louise discussed the contents of her will (and the disinheritance provisions) with another sister, Jeannette.  However, she did not show Jeannette the actual document.

Three months later, Louise Hatten passed away.

The day after she died, Antoinette and brother Louis Hatten went to Louise’s condo, needing to pick out Louise’s burial outfit.  A neighbor named Helen Baer came along to help.  As they were searching for the clothing, they found a paper bag filled with documents.  Louis took the bag as well as some metal boxes.  He did not show Antoinette or Helen what was in the paper bag or the metal boxes.

Louis later filed a Petition for Administration seeking to probate his late sister’s estate, and requested that he be named Personal Representative. His filing claimed that there was no will; he stated that Louise had died without a will, and therefore the estate would have to proceed as “intestate.”  The Florida state intestacy laws would be followed in distributing Louise’s assets; in this situation, Louise’s six surviving siblings would each stand to inherit equal 1/7th shares of her estate, after fees and administrative expenses are paid.

Antoinette and her sisters could not file a will contest in the Florida probate court, because there was no filed will to challenge.  Instead, they sued brother Louis for “tortious interference with a inheritance.”  They argued that Louis must have discovered the will that Louise had shown to one sister and described to another sister in the stuff he took out of the condo. Since that will only provided for Louis to inherit $1.00, they argued, it made sense for him to destroy it.

They sued Louis for the amount of money that they would have inherited under the destroyed will.  The trial court initially granted summary judgment to Louis, essentially saying that even if everything the siblings had alleged Louis had done were true, it still did not prove Louis’s conduct rose to the level of a tort.  The third district court of appeals of Florida disagreed, reversed the lower court’s decision and remanded for a full trial on the matter of whether or not Louis maliciously destroyed his sister’s will.

What Should You Do About A Destroyed Will?

If you or a loved one faces the problem of being unable to find a prior will and believes it may have been destroyed for the financial benefit of a current beneficiary, then it is in your best interests to seek the advice of an experienced, knowledgeable Florida probate lawyer from Sackrin & Tolchinsky, P.A. on how best to deal with your potential legal claims. It is possible that you may have a personal claim for damages against the wrongdoer instead of a will contest in probate court.  Time may be of the essence; call today!

For more information check out our probate litigation page.


Picture of Larry TolchinskyDo you have questions or comments? Then please feel free to send Larry an email or call him now at (954) 458-8655.



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