## Facts

- In 1965, Helen E. Carville executed a will placing her estate in trust for her two grandchildren.
- Carville kept the executed original in a metal box in her office with other important papers; her attorney retained an unexecuted carbon copy.
- Carville was meticulous in maintaining her important documents.
- Before death, Carville discussed possibly changing or making a new will (e.g., to benefit a great-grandchild), but no witness saw a new will or heard her say she executed one.
- Witness testimony indicated Carville did not express an intent to leave her estate to her daughter, Dianna Upson.
- The metal box (and the original will) was seen in Carville’s possession a week or two before her death but could not be found afterward despite a search.
- Upson lived nearby and would inherit the entire estate if the will were treated as revoked.

## Issues

1. Whether the presumption that a missing will last in the testator’s possession was intentionally destroyed to revoke it was rebutted.
2. Whether competent substantial evidence supported establishing and admitting the lost will to probate based on a retained copy and surrounding circumstances.

## Decision

- The District Court of Appeal, First District, affirmed the probate court’s order establishing and admitting the lost will to probate.
- The court upheld the finding that the presumption of revocation was rebutted by competent substantial evidence.
- The court rejected Upson’s claim to take the estate by intestacy as the alleged sole heir.

## Legal Principles

- When a will last known to be in the testator’s possession cannot be found after death, a rebuttable presumption arises that the testator destroyed it with intent to revoke.
- The proponent of a lost will may rebut the presumption of revocation with competent substantial evidence showing the will was not revoked (e.g., it was lost or destroyed by someone else).
- Evidence that an adversely interested person had motive and opportunity to destroy the will may support a finding of non-revocation.
- A lost will may be established through a correct copy and supporting testimony sufficient to prove execution and contents.
- Appellate review defers to probate fact-finding and will affirm if supported by competent substantial evidence.

## Conclusion

The court affirmed probate of Carville’s lost will, holding that evidence concerning Carville’s continued testamentary intent, the disappearance of the container holding the will, and the motive and opportunity of an adverse party supported the probate court’s finding that the missing original had not been revoked.


Upson v. Estate of Carville, 369 So. 2d 113 (Fla. 1st DCA 1979)