## Facts

- The decedent executed a will on February 5, 2001 leaving his estate to his four children in unequal shares.
- The decedent executed a later will on May 31, 2002 that bequeathed a Canadian home to Ruth Honsberger, a long-time nonrelative friend and tenant, and left remaining assets to the decedent’s brother (who later disclaimed any interest).
- The decedent died on March 3, 2007; the original 2002 will could not be located.
- The children sought to probate the 2001 will while acknowledging the missing 2002 will and asserting it no longer existed.
- Honsberger objected to probate of the 2001 will and petitioned to establish the 2002 will as a lost will, alleging it was lost or destroyed without the decedent’s intent to revoke.
- After a hearing, the trial court found the decedent wanted Honsberger to receive the Canadian house and entered an order admitting the 2002 will as a lost will, subject to confirming the accuracy of the copy presented.
- The children sought rehearing, arguing Florida law required disinterested witness testimony to prove execution and content of a lost will when a copy exists.
- Honsberger submitted affidavits from the two attesting witnesses stating the will was properly executed; the trial court denied rehearing and again admitted the 2002 will to probate.
- The children appealed the order admitting the 2002 will to probate as a lost or destroyed will.

## Issues

1. Whether the proponent of a lost or destroyed will satisfied Florida Statutes § 733.207 when she relied on affidavits rather than disinterested witness testimony to prove the will’s execution and specific content.
2. Whether failure to present disinterested witness testimony proving the specific content of the will required reversal of the order admitting the lost will to probate.

## Decision

- The appellate court reversed the order admitting the 2002 will to probate.
- The court held that Honsberger failed to meet the statutory burden to prove the specific content of the will through the testimony of a disinterested witness as required by § 733.207.
- The court rejected the use of affidavits as a substitute for the statutory requirement of “testimony” to establish a lost will’s content.

## Legal Principles

- Under Florida Statutes § 733.207, when a correct copy of a lost or destroyed will exists, the execution and content must be proved by the testimony of one disinterested witness.
- Affidavits, even from attesting witnesses, do not satisfy § 733.207’s requirement of disinterested witness testimony establishing the specific content of the lost will.
- When an original will that was in the testator’s possession cannot be found, Florida law applies a presumption that the will was destroyed with intent to revoke; the proponent bears the burden to rebut that presumption, in addition to satisfying § 733.207’s proof requirements.

## Conclusion

The court reversed admission of the 2002 lost will because the proponent did not comply with § 733.207’s requirement that a disinterested witness provide testimony proving the will’s execution and specific content, and affidavits were not an adequate substitute for that statutory proof.


Brennan v. Honsberger, 101 So. 3d 415 (Fla. Dist. Ct. App. 5th Dist. 2012)