## Facts

- Alexander Tolin executed a 1984 will leaving the residue of his estate to his friend, Adair Creaig.
- In 1989, Tolin executed a codicil changing the residuary beneficiary to Broward Art Guild, Inc.
- Attorney Steven Fine drafted the instruments and retained the originals; Tolin received photocopies.
- About six months before his death, Tolin told his neighbor, Ed Weinstein, that the codicil was a mistake and that he wanted to revoke it and reinstate Creaig as residuary beneficiary.
- Weinstein advised Tolin that revocation could be accomplished by tearing up the original codicil.
- Tolin gave Weinstein a blue-backed document he represented as the original codicil; Weinstein believed it appeared to be the original and returned it.
- Tolin tore up and destroyed the document intending revocation; the parties stipulated the act was done with intent and for the purpose of revocation.
- After Tolin’s death, Weinstein learned Fine still possessed the original will and original codicil.

## Issues

1. Whether a codicil may be revoked by destroying a photographic copy when the testator mistakenly believes it is the original and intends revocation.
2. If the codicil is not revoked under statutory formalities, whether a court may impose a constructive trust to prevent the named beneficiary from taking contrary to the testator’s actual intent due to a mistake of fact.

## Decision

- The court answered the certified question in the negative: destroying a photographic copy does not revoke a codicil, even if the testator believed it was the original and intended revocation.
- The court held the codicil remained valid for probate purposes because statutory revocation-by-act requirements were not satisfied.
- The court nonetheless held equity could impose a constructive trust on the property passing under the codicil to prevent unjust enrichment caused by an honest mistake of fact.
- The court reversed the district court of appeal and remanded with directions consistent with imposing a constructive trust benefiting Creaig.

## Legal Principles

- Revocation of a will or codicil by physical act must strictly comply with statutory formalities; the act must be performed on the original instrument, not a copy.
- A testator’s intent to revoke, standing alone, does not excuse noncompliance with statutory revocation requirements.
- A constructive trust may be imposed where, because of an honest mistake of fact, property would otherwise pass in a manner inconsistent with the decedent’s true intent, resulting in unjust enrichment.
- Probate validity and equitable entitlement may be treated separately: an instrument may remain effective in probate while equity restricts the beneficiary’s ability to retain the beneficial interest.

## Conclusion

A codicil is not revoked by the testator’s destruction of a photocopy, even if done under a mistaken belief that the copy was the original, but a court may impose a constructive trust to prevent the codicil’s named beneficiary from retaining property when the distribution would result from a mistake of fact and contradict the decedent’s actual intent.


In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993)