## Facts

- Thomas Flanigan died on February 15, 2005.
- Fran Price petitioned to administer the estate, alleging Flanigan had an “undiscovered” will naming her as personal representative and primary beneficiary, but the original could not be found.
- Eight heirs asserted Flanigan died intestate and sought a determination of beneficiaries.
- Price filed a petition to establish a lost will, claiming Flanigan executed a handwritten will leaving nearly all assets to her.
- Two bank employees involved in the signing provided testimony about execution:
  - Dalila Ramos (notary) testified she notarized the document but did not remember whether Flanigan signed in her presence; she called another employee to witness only after Ramos had signed as notary.
  - Donna Fazio (witness) testified she signed as a witness but did not see Flanigan sign and did not see Ramos sign.
- Price offered no evidence contradicting the bank employees’ account, arguing that physical proximity during signing should satisfy execution requirements.
- The trial court granted summary judgment for the heirs, ruling the lost will was not validly executed under Florida’s will-execution statute and the decedent died intestate.

## Issues

1. Whether the proponent of a purported lost will produced sufficient evidence that the will was executed in compliance with Fla. Stat. § 732.502, including the requirement that witnesses sign in the presence of the testator and each other.
2. Whether summary judgment determining intestacy was proper where testimony indicated noncompliance with statutory execution formalities and the proponent offered no contrary evidence.

## Decision

- The appellate court affirmed final summary judgment for the heirs.
- The court held that establishing and probating a lost will requires proof the original was executed with the formalities of Fla. Stat. § 732.502.
- The uncontroverted testimony showed the witness did not see the testator or the notary sign, and the notary was unsure the testator signed in her presence.
- Physical proximity arguments could not substitute for proof of compliance with the statutory presence and attestation requirements.
- With no genuine dispute of material fact on execution formalities, the decedent was properly treated as having died intestate.

## Legal Principles

- A lost will may be established and admitted to probate only upon proof that the original was executed in strict compliance with Fla. Stat. § 732.502.
- Florida requires strict compliance with will-execution formalities; substantial compliance is insufficient.
- The presence requirement—witnesses signing in the testator’s presence and in the presence of each other—is essential to a valid will.
- The proponent bears the burden to make a prima facie showing of due execution and attestation (including for a lost will).
- An improperly attested will cannot be admitted to probate; where execution defects are shown without contradiction, intestacy follows.

## Conclusion

The court affirmed that the estate must be administered as intestate because the will proponent failed to prove, as required for a lost will, that the document was executed with the witness-presence and attestation formalities mandated by Florida law, and the undisputed evidence showed noncompliance.


Price v. Abate, 9 So. 3d 37 (Fla. Dist. Ct. App. 5th Dist. 2009)