In Pilak, Pilak, and Rutenburg v Reigel, and The Estate of Ronald G Sas, 51 Fla. L. Weekly D228 ( 5th DCA Feb. 2026), the Trial court erred by granting petition to establish lost Will and codicils based on finding that that the presumption that the will was revoked did not apply because there was no evidence that original will was ever in possession of decedent at any time.
Even if presumption of revocation did not arise, proponents of lost will were still required to comply with statutory requirements of section 733.207, which they did not do. Testimony of the sole witness, who was a beneficiary of alleged second codicil, was insufficient to prove contents of lost will under the statute because he was not a disinterested witness. Even if the witness had no stake in the outcome, the witness knew nothing of the contents of the will and was not a witness to its execution.
Consents and waivers signed by appellants consenting to entry of an order granting a prior, unfiled petition to establish lost will did not waive appellants’ right to challenge will or appellees’ requirement to prove the will where consents and waivers were never filed in or accepted by a court and had been withdrawn prior to filing of instant petition. Furthermore, contents of consents and waivers did not provide any testimony about specific contents of the will and were not signed by a disinterested witness.
To avoid the finding of revocation, proponents of the lost will bear the burden of presenting competent substantial evidence that justifies a finding that the will had not been revoked. The first step in overcoming the presumption is establishing the terms of the will and offer it for probate pursuant to section 733.207.
If you have more questions regarding Probate Administration, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and arrange an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com
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