## Facts

- In 1955, spouses George Algar and Marie Algar each executed a will containing reciprocal language and a covenant that neither would change the will’s provisions without the other’s written consent.
- The 1955 plan left the entire estate to the surviving spouse, and on the survivor’s death, the remainder to George’s two sons from a prior marriage, William and Harold Algar.
- George died in 1966.
- In 1968, Marie executed a new will expressly revoking prior wills and leaving her estate to her own children from a prior marriage.
- After Marie’s death, the 1968 will was offered for probate; William and Harold sought to probate the 1955 will instead and also sought damages for breach of an alleged contract not to revoke.
- William and Harold could not produce the original 1955 will and relied on carbon copies, offering no affirmative evidence that the original existed at Marie’s death or that it was lost or destroyed without her consent.

## Issues

1. Whether the 1955 will could be admitted to probate as a lost will despite the presumption that a missing will was revoked by the testator.
2. Whether the covenant in the 1955 reciprocal wills established an enforceable contract to make a will or not to revoke, warranting invalidation of the 1968 will or damages for breach.

## Decision

- The appellate court affirmed the probate court’s admission of the 1968 will to probate.
- The court affirmed denial of probate of the 1955 will as a lost will because the proponents failed to rebut the presumption of revocation.
- The court affirmed denial of the contract claim because the proponents did not establish an enforceable contract to make a will or not to revoke under Florida law.

## Legal Principles

- When a will is lost or destroyed and the original cannot be produced, Florida law presumes the testator destroyed it with intent to revoke; the proponent bears the burden to prove nonrevocation.
- Carbon copies may show a prior will’s contents but do not, without additional proof, establish that the original remained in existence at death or was lost or destroyed without the testator’s consent.
- Mutual or reciprocal wills are not automatically contractual; an enforceable contract to make a will or restrict revocation requires clear proof of an agreement, typically shown by explicit contractual terms or a separate writing.
- A later properly executed will that expressly revokes prior wills supports the conclusion that earlier instruments were revoked absent proof of a binding nonrevocation agreement.

## Conclusion

The court upheld probate of the later will because the missing earlier will was presumed revoked and the beneficiaries failed to prove both nonrevocation of the 1955 instrument and a legally enforceable contract preventing the surviving spouse from changing her testamentary disposition.


Algar v. King (In re Estate of Algar), 383 So. 2d 676 (Fla. Dist. Ct. App. 1980)