## Facts

- Scott P. Smith executed a will and later executed a codicil intended to create a $40,000 trust to provide for his two dogs.
- Smith’s will named Thomas Allen (Smith’s longtime attorney) and Lance Smith as co-personal representatives.
- Allen and Lance also signed the estate documents as witnesses.
- The codicil set aside $40,000 for Lance Smith to care for the dogs as trustee.
- Allen kept the original codicil in his office but later lost it and never found it.
- After the original went missing, Allen printed an unsigned copy of the codicil from his law-office computer system.
- Following Smith’s death, Allen and Lance filed the will and the printed, unsigned codicil in probate and petitioned to establish and probate the lost codicil under section 733.207, Florida Statutes (2010).
- The proceedings included Astrid DeParry, appointed guardian ad litem for Smith’s minor grandson, Scott P. Smith III, who would be affected by whether the $40,000 pet trust reduced his share of the estate.
- The probate court held an evidentiary hearing and denied the petition, concluding the computer printout was not a “correct copy” and that neither co-personal representative could qualify as a “disinterested witness” to prove the contents of the lost codicil.
- Allen and Lance appealed.

## Issues

1. Whether a computer-generated printout from an attorney’s word-processing system can qualify as a “correct copy” of a lost codicil for purposes of section 733.207.
2. Whether the co-personal representatives could satisfy section 733.207’s requirement that the contents of a lost codicil be proved by the testimony of at least one “disinterested witness.”
3. Whether the guardian ad litem for the decedent’s minor grandson was an “interested person” with standing to object to establishing the lost codicil.

## Decision

- The Second District affirmed the order denying the petition to establish and probate the lost codicil.
- The court rejected the probate court’s categorical view that a computer-generated printout can never be a “correct copy,” explaining that a computer-generated document may qualify if it is shown to be identical to the executed original.
- Even assuming the printout could qualify as a correct copy, the court held the petition still failed because the codicil’s contents were not proved through the testimony of at least one disinterested witness as required by section 733.207.
- The court also held the guardian ad litem had standing as an “interested person” because the codicil, if established, would diminish the minor grandson’s share of the estate.

## Legal Principles

- Section 733.207, Florida Statutes, governs establishment of a lost or destroyed will or codicil and requires proof of due execution, the cause of nonproduction, and the instrument’s contents.
- The “contents” element must be proved in the manner specified by section 733.207, including testimony from at least one disinterested witness; producing a document labeled as a copy does not remove the disinterested-witness requirement.
- A “correct copy” is a copy shown to be identical to the executed original; it is not limited to carbon or photocopies, and a computer-generated printout may qualify if proven identical to the executed document (as distinguished from a preliminary draft).
- A “disinterested witness” is a witness without a meaningful personal interest in the outcome of establishing the lost instrument; fiduciaries or beneficiaries whose positions or financial interests are affected may be treated as interested rather than disinterested for section 733.207 purposes.
- In the Florida Probate Code, “interested person” is a standing concept: a person whose property rights or economic interests may be affected by the probate proceeding is entitled to notice and an opportunity to be heard.

## Conclusion

Smith v. DeParry affirmed denial of probate of a lost codicil creating a $40,000 pet trust because the proponents could not prove the codicil’s contents through at least one disinterested witness as section 733.207 requires; the court also clarified that a computer-generated printout can be a “correct copy” if shown identical to the executed original and held that the minor beneficiary’s guardian ad litem had standing as an interested person to object.


Smith v. DeParry, 86 So. 3d 1228 (2012)