Smith v. DeParry, — So.3d —-, 2012 WL 1521541 (Fla. 2d DCA May 2, 2012) 

This is a lost will case. The pitfalls lurking under the surface of these often seemingly simple cases can trip up the best of us. See herehere. For those brave souls willing to take one of these cases on, here’s a short recap of the controlling law:

[1] When an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it.

[2] The proponent of the lost will has the burden of introducing competent, substantial evidence to overcome the presumption of revocation. That process is governed by F.S. 733.207, which provides as follows:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

See also Fla. Prob. R. 5.510 (stating additional requirements for the establishment and probate of a lost or destroyed will).

Case Study:

The decedent in this case owned two fox red Labrador Retriever dogs. On October 24, 2007 he executed a codicil to his will providing for a $40,000 bequest to establish a pet trust for the health, care, and welfare of his dogs. The decedent’s estate planning attorney, who was also one of his co-personal representatives, subsequently lost the originally executed copy of the codicil. The initial trustee of the pet trust was also one of the co–personal representatives. By the time the co–personal representatives filed a petition to establish the lost codicil; $40,000 of the estate’s money had already been transferred to fund the pet trust. The GAL appointed to represent the decedent’s minor grandson contested the petition to establish the lost codicil.

The petition to probate the lost-codicil was denied on two grounds: [1] probate judge ruled a computer copy is categorically excluded from the definition of "correct copy" under F.S. 733.207; and [2] because personal representatives are by definition always "interested persons" of an estate under F.S. 731.201(23), probate judge ruled they are categorically excluded from the definition of "disinterested witness" under F.S. 733.207. Wrong answer, on both points. But none of that mattered because, according to the 2d DCA, even though the probate judge pretty much got every legal issue in this case wrong, the judge still managed to reach the correct result. Why? Because there weren’t enough disinterested witnesses to prove up the lost codicil.

Does an unsigned document stored on your computer count as a "correct copy" under F.S. 733.207? YES

The probate court ruled the unsigned copy of the codicil generated from the drafting attorney’s office computer did not qualify as a "correct copy" under F.S. 733.207 based on a 1980 Florida Supreme Court decision defining a "correct copy" as follows:

The word “copy,” then, means a double of an original instrument, such as a carbon or photostatic copy. The word “correct” modifies and qualifies the word “copy.” It strengthens the already strong word “copy.” We therefore conclude that the words “correct copy” means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.

See In re Estate of Parker (Parker II), 382 So.2d 652 (Fla.1980).

Just because carbon copies and photo copies were the dominant form of document retention in 1980, doesn’t mean we’re supposed to be frozen in time. A lot’s changed since 1980, of course computer copies are acceptable in today’s digital world. Did we really need an appellate decision to establish this obvious point? Anyway, this is the kind of basic law you’ll want to keep handy for your practice. Here’s how the 2d DCA put it:

[First], the probate court misconstrued the portion of the supreme court’s holding in Parker II referring to the requirement of “an identical copy such as a carbon or photostatic copy.” 382 So.2d at 653. Both the probate court and the GAL read this language as exclusive. In their view, the only type of copy that can be used to prove the content of a lost will or codicil under the statute is a carbon copy or a photocopy. Such an interpretation would preclude the use of a computer-generated copy. However, the supreme court’s language in Parker II is not so restrictive. In the court’s reference to “an identical copy such as a carbon or photostatic copy,” the carbon copy and the photostatic copy are merely examples of identical copies. See The American Heritage Dictionary of the English Language 1729 (4th ed. 2000) (defining the idiom, “such as” to mean “[f]or example”). However, the carbon copy and the photocopy are not the only kind of copy that can qualify as an identical copy of an original document. Unquestionably, a copy of a document generated on a computer can be identical to—and indistinguishable from—the original.

[Second], the supreme court decided the Parker II case in 1980. Although some personal computers were sold in the late 1970s, the personal computer did not come into general use in law offices and other businesses until the 1980s, after Parker II was decided.[FN3] We do not think that the supreme court’s reference in 1980 to carbon copies and photostatic copies as examples of “an identical copy” was intended to limit for all time the types of copies that could be used to establish the contents of a lost instrument, regardless of future technological developments. Indeed, the legal profession in Florida is now reported to be on the brink of a transition to the paperless office and the paperless courthouse. See Gary Blankenship, E-filing’s Time is Now, Fla. B. News, Jan. 15, 2012, at 1; Gary Blankenship, E-filing’s Proponents: Get Ready, It’s Coming, Fla. B. News, Dec. 1, 2011, at 1. As we face this transition, it would be an anachronism to adopt a rule that a copy of a lost will or codicil retrieved from the hard drive of a computer or from a cloud database[FN4] cannot be a “correct copy” within the meaning of section 733.207.

FN3. See History of personal computers (Jan. 26, 2012, 8:38 p.m.), http://en.wikipedia.org/wiki/History_of_personal_computers.

FN4. “A cloud database is a database that typically runs on a Cloud Computing platform, such as Amazon EC2, GoGrid and Rackspace.” Cloud database (Jan. 11, 2012, 7:00 p.m.), http://en.wikipedia.org/wiki/Cloud_database. “Cloud computing is the delivery of computing as a service rather than a product, whereby shared resources, software, and information are provided to computers and other devices as a metered service over a network (typically the Internet).” Cloud computing (Feb. 6, 2012, 4:38 a.m.), http://en.wikipedia.org/wiki/Cloud_computing.

By the way, the 2d DCA also pointed out that a "correct copy" doesn’t have to be signed:

A copy need not be conformed to qualify as a correct copy under the statute. In other words, there is no requirement that the copy bear the signature of the testator or the signatures of the witnesses. Carlton v. Sims (In re Estate of Carlton), 276 So.2d 832, 833 (Fla.1973); Stewart v. Johnson, 142 Fla. 425, 194 So. 869, 872 (1940); Brittingham v. Jarvis (In re Estate of Maynard), 253 So.2d 923, 924 (Fla. 2d DCA 1971); Bury, 591 So.2d at 676–77.

Can a personal representative be a "disinterested witness" under F.S. 733.207? YES

The probate judge got this one wrong too. In one section of our probate code the word "interested" is used to establish who has standing to participate in a particular probate proceeding. That’s how the word is used in the definition of "interested persons" found in F.S. 731.201(23). In another section of our probate code, the word "interested" is used to distinguish between witnesses who have a personal stake in the outcome of a trial, and those we would otherwise consider to be neutral (and thus more trustworthy). That’s how the word is used in F.S. 733.207 when referring to a "disinterested witness." This is an important distinction, which the 2d DCA does a good job of explaining.

There is a significant distinction between the concept of an “interested person” under section 731.201(23) and the concept of “disinterested witnesses” as used in section 733.207. Under the Probate Code, the term “interested person” refers to a person’s or entity’s standing, i.e., the right to notice and an opportunity to be heard in a particular proceeding pending in a probate or guardianship matter. See Hayes v. Guardianship of Thompson, 952 So.2d 498, 507–08 (Fla.2006).

On the other hand, a person may be described as “disinterested” when he or she is “[f]ree from bias, prejudice, or partiality; not having a pecuniary interest.” Black’s Law Dictionary 536 (9th ed. 2009). It follows that a “disinterested witness”—as the term is used in section 733.207—refers to a person “who has no private interest in the matter at issue.” Black’s Law Dictionary 1740 (9th ed. 2009). To put it differently, a “disinterested witness” has no stake in the outcome of the matter in which he or she offers evidence. See The American Heritage Dictionary of the English Language 519, usage note (4th ed. 2000) (“In traditional usage, disinterested can only mean ‘having no stake in an outcome,’….”). The probate court’s ruling erroneously assumed that an “interested person” under the Probate Code could not simultaneously be a “disinterested witness.”

. . . Thus the personal representative can be an interested person but still participate in a proceeding as a disinterested witness. In reaching its ruling in this case, the probate court overlooked this significant distinction.

Did drafting attorney qualify as a "disinterested witness" under F.S. 733.207? NO

So why did the co-personal representatives lose this case, even though the 2d DCA disagreed with every legal ruling made by the probate judge? No evidence. Or more precisely, there weren’t any "disinterested witnesses" available to prove up the lost codicil. But, you might ask, what about the drafting attorney ("Mr. Allen")? Why couldn’t he testify? Due to bad luck or lack of foresight, by the time the lost-codicil petition got to trial, Mr. Allen (who was also one of the co-personal representatives) had his own problems to worry about. According to the 2d DCA, depending on how the trial came out, he was facing at least two different law suits.

Mr. Allen’s personal interest in the outcome derives from at least two factors. First, Mr. Allen was directly responsible for the loss or destruction of the codicil from which Mr. Smith was to benefit. An adverse ruling on the petition might result in a claim by [the estate] against Mr. Allen for damages. . . . Second, if [the other co-personal representative] failed to return the $40,000 to the estate with interest, the beneficiaries might make a claim against Mr. Allen, as Co–Personal Representative, predicated on the default of his fellow fiduciary. . . . Thus Mr. Allen . . . did not qualify as a disinterested witness because of his direct stake in the outcome of the pending proceeding.[FN5]

FN5. Of course, we express no opinion on the merits of either of the potential claims against Mr. Allen. The possibility that such claims could be advanced and plausibly maintained is sufficient to give him a “private interest in the matter at issue.” See Black’s, supra (defining a disinterested witness as a person with no such interest). 

But what about the typist who wrote up the lost codicil, or the lady who witnessed the decedent’s execution of the document?

This last point is especially important for practicing probate litigators. In order to prove up a lost will, F.S. 733.207 sets two conditions for your witnesses: [1] they have to be "disinterested," and, just as importantly, [2] they need to have firsthand knowledge of the "content" of the lost document and the decedent’s acceptance of this content. Once the drafting attorney was knocked out as a potential witness, the rest of the case quickly caved in. Here’s why:

The remaining witnesses were unable to prove the content of the lost codicil as required by section 733.207. Deborah Stegmeier, Mr. Allen’s office assistant, prepared the codicil, as well as several other documents for execution by the decedent, on her computer in Mr. Allen’s Orlando office. However, Ms. Stegmeier did not accompany Mr. Allen to St. Petersburg for the execution of the codicil. She remained behind at his Orlando office. Thus, as the probate court observed, Ms. Stegmeier did “not have firsthand knowledge of what document may or may not have been presented to the [d]ecedent for his signature.” Instead, Ms. Stegmeier’s knowledge was limited to the documents prepared on her computer.

Jennifer Torres was one of the witnesses to the execution of the codicil and to a separate trust agreement. Ms. Torres candidly admitted that she did not read any of the documents to which she was a witness. Thus Ms. Torres could not testify to the content of the codicil signed by the decedent. Cf. Bury, 591 So.2d at 677 (holding that the testimony by a witness to the execution of a will that the carbon copy produced at the hearing was identical to the original will executed by the decedent was sufficient to meet the requirements of a “correct copy” under the statute for proving the content of the lost original). The Co–Personal Representatives did not call the other witness to the execution of the will to testify at the hearing.

To summarize, the Co–Personal Representatives proffered a “correct copy” of the lost codicil in support of their amended petition. However, they failed to prove the content of the lost codicil with the testimony of at least one disinterested witness as required by section 733.207.