## Facts

- Mary E. Walton (Mary) was widowed and had no children. In October 1985, she executed a will at her home; it was properly executed, and the original was delivered to her.
- Earl Frederick Booth drafted the will at Mary’s request and kept a photocopy after execution. Booth disclaimed any interest in Mary’s estate.
- The 1985 will primarily benefited Rodger Walton (Mary’s late husband’s nephew) and Rodger’s wife, Dorothy Walton, along with other family members and friends.
- If Mary died intestate, her estate would pass to her four surviving blood relatives (nieces and nephews), including James Blawie.
- In 1987, Mary fell and broke her leg and placed herself in a nursing home because she could not physically care for herself. She later developed terminal cancer.
- Near the end of her life, Mary was extremely physically weak but was described as mentally sound. She later returned home for hospice care.
- Marilyn Blawie (James’s wife) testified that while Mary was still in the nursing home, Mary asked Marilyn to retrieve the will from a hiding place in Mary’s home and keep it.
- Marilyn further testified that after Mary returned home, Marilyn brought the will back; Mary stated she intended to revoke it and tore up the will in Marilyn’s presence. Marilyn was the only witness to this alleged revocation.
- After Mary died, the executed original could not be found. The Waltons petitioned to establish the lost or destroyed 1985 will.
- In support of the petition, Booth produced his photocopy, testified it was a correct copy of the executed will, and testified that about two weeks before Mary’s death, Mary told him she wanted her estate distributed under the 1985 will.
- The trial court denied the petition, relying on Marilyn’s testimony that Mary destroyed the will with intent to revoke. The Waltons appealed.

## Issues

1. Whether the proponents presented competent and substantial evidence sufficient to rebut the presumption that a missing will last in the testator’s possession was destroyed with intent to revoke.
2. Whether the Waltons met Florida’s requirements to establish the contents of a lost or destroyed will through a correct copy and disinterested witness testimony.
3. Whether the trial court erred by relying on testimony from the spouse of an intestate heir about the decedent’s statements and conduct regarding revocation, given the Dead Man’s Statute.

## Decision

- The Third District Court of Appeal reversed the order denying the petition to establish the lost or destroyed will.
- The court applied the presumption that a will last in the testator’s possession and missing at death was destroyed with intent to revoke, but held that the presumption was rebutted by competent and substantial evidence on this record.
- The court concluded that the will’s contents were sufficiently proven through Booth’s correct photocopy and his testimony as a disinterested witness.
- The court determined the trial court should not have relied on Marilyn Blawie’s testimony about Mary’s alleged revocation because Marilyn had a financial stake through her husband’s intestate-heir status and was disqualified from testifying to communications and transactions with the decedent about revocation.
- The case was remanded for further proceedings consistent with establishing the will.

## Legal Principles

- If an original will was in the testator’s possession before death and cannot be located afterward, Florida law presumes the testator destroyed it with intent to revoke.
- That presumption may be overcome only by competent and substantial evidence; without such evidence, revocation must be found.
- A lost or destroyed will may be established by proving due execution and the will’s contents under § 733.207, Florida Statutes: the contents must be shown by two disinterested witnesses, or by one disinterested witness if a correct copy is produced.
- Under Florida’s Dead Man’s Statute, a witness with a direct or derivative pecuniary interest (including through a spouse who would inherit by intestacy) is disqualified from testifying about communications or transactions with the decedent concerning revocation or destruction of the will.

## Conclusion

The appellate court reversed because the Waltons presented a correct photocopy and disinterested testimony from the drafter showing Mary still wanted the 1985 will to control shortly before her death, which rebutted the presumption of revocation, and because the trial court improperly relied on revocation testimony from an interested witness disqualified under the Dead Man’s Statute.


Walton v. Estate of Walton, 601 So. 2d 1266 (1992)