Florida Probate & Trust Litigation Blog

Brennan v. Honsberger, --- So.3d ----, 2012 WL 5969617 (Fla. 5th DCA November 30, 2012) 

This is the second time this case has been up on appeal. The first time around the issue was whether live witness testimony is required as a matter of law to prove a lost will or whether affidavits alone will do if your probate judge says it's OK. As I previously wrote here, the 5th DCA held that live witness testimony is required, it's NOT optional.

OK, so now we know affidavits aren't going to cut it; you need live witness testimony. But not just any old witness will do, under F.S. 733.207 your witness [1] must be "disinterested," and, just as importantly, [2] your witness must have firsthand knowledge of the "specific content" of the lost will. As the 2d DCA recently held in Smith v. DeParry [click here], if you don't nail both requirements, your lost will is going to stay lost.

Now back to our case. On remand, the trial judge again admitted the lost will to probate, this time based on witness testimony. So far so good. Here's what didn't happen: the witnesses had nothing to say about the content of the will they witnessed. Not surprisingly, the 5th DCA once again reversed the trial judge (is there a pattern here?). Bottom line, if your witness can't testify to the content of the lost will, game over:

On remand, the trial court conducted an evidentiary hearing at which Ms. Kessinger and Ms. Liles testified. Although both witnesses testified (consistent with their previously submitted affidavits) as to the execution of the will, neither had knowledge of its content.

In our prior opinion, we stated that as the proponent of a lost will, Ms. Honsberger was required to present the testimony of at least one disinterested witness to establish its content. Id. at 897. Because Ms. Honsberger failed to do so, the trial court erred in admitting the 2002 will to probate.