## Facts

- Adrian G. Bancker executed a will in 1962, a codicil in 1965, and a new will in 1966.
- The 1966 will largely mirrored the earlier dispositive plan, leaving the estate to Bancker’s wife if she survived him; the principal change concerned an alternative executor.
- After becoming dissatisfied with the attorney associated with the 1966 will (who was named as alternate executor), Bancker sought to negate the 1966 instrument.
- Acting on legal advice that destroying the 1966 will would restore the earlier will, Bancker directed his wife, stepdaughter, and stepdaughter’s husband to destroy the 1966 will.
- While Bancker remained in bed in another room, they removed the will from a wall safe, tore it up, and flushed it; Bancker did not observe the destruction and was informed afterward.
- Bancker died in April 1967, survived by his widow, three natural children, and a stepdaughter.
- The widow initially offered the 1962 will for probate and received letters testamentary; Bancker’s natural children challenged the will on lack of capacity and undue influence.
- The widow then petitioned to re-establish the destroyed 1966 will for probate.
- The county judge revoked probate-related orders connected to the 1962 will, denied the petition to establish the 1966 will, and effectively treated the estate as intestate.
- The widow appealed.

## Issues

1. Whether the destroyed 1966 will was sufficiently proven by secondary evidence to be re-established and admitted to probate.
2. Whether the 1966 will was effectively revoked by destruction where third parties destroyed it outside the testator’s presence, though at his direction and with claimed intent to revoke.

## Decision

- The appellate court reversed the county judge’s refusal to admit the 1966 will.
- The court held the 1966 will was sufficiently re-established for probate based on a copy and witness proof meeting statutory requirements.
- The court held the attempted revocation by physical destruction was ineffective because the destruction did not occur in the testator’s presence as required by Florida’s revocation statute.
- The case was remanded for further proceedings; other probate challenges could be pursued on remand.

## Legal Principles

- Revocation of a will by physical act must strictly comply with the governing statute; if the statute requires destruction “by the testator or in his presence and by his direction,” destruction outside the testator’s presence is not a valid revocation.
- A will that has been lost or destroyed may be re-established for probate when its contents and execution are proven through competent secondary evidence (including a copy) and the statutory proof requirements are satisfied.
- Proof that an original was physically destroyed does not, by itself, establish legal revocation; revocation depends on compliance with statutory formalities.
- Courts give effect to the testator’s intent as shown by the testamentary plan, and will not infer intestacy where the record shows a consistent intent to dispose of property by will.

## Conclusion

The appellate court held that the decedent’s 1966 will could be re-established and admitted to probate because its contents were adequately proven and the attempted revocation failed statutory requirements, given that the destruction occurred outside the testator’s presence.


In re Estate of Bancker, 232 So. 2d 431 (Fla. Dist. Ct. App. 1970)