Estate of Tolin, In re, 91-1261
| Decision Date | 03 January 1992 |
| Docket Number | No. 91-1261,91-1261 |
| Citation | 594 So.2d 309 |
| Parties | In re the ESTATE OF Alexander TOLIN. 594 So.2d 309, 17 Fla. L. Week. D160, 17 Fla. L. Week. D687 |
| Court | Florida District Court of Appeals |
Charles P. Johnson, Jr., Fort Lauderdale, for appellant-Broward Art Guild, Inc.
Daniel E. Oates, Pompano Beach, for appellee-Adair Creaig.
We reverse an order revoking the probate of a codicil to a will. The order also reinstated the will as if the codicil had never been executed. The evidence reflects that the testator attempted to revoke the codicil by destroying a photostatic copy. However, the appellant raises questions, in argument, of other possible motives.
An original will or codicil may only be revoked consistent with the provisions of section 732.506, Fla.Stat. (1975). In re Bancker's Estate, 232 So.2d 431 (Fla. 4th DCA), cert. denied, 238 So.2d 111 (Fla.1970). Simply destroying an unsigned copy, even one containing a photo image of the original signature, is insufficient to accomplish that end. Cf. Lowy v. Roberts, 453 So.2d 886 (Fla. 3d DCA 1984); In re D'Agostino's Will, 9 N.J.Super. 230, 75 A.2d 913 (1950); In re Will of Wehr, 247 Wis. 98, 18 N.W.2d 709 (1945).
I would affirm the trial court's decision that the testator effectively revoked the codicil to his will by destroying his photocopy of the codicil with the intent of revoking it.
It is undisputed that the testator was provided a photocopy of his executed will by his lawyer at the time the will was drafted and executed, and similarly the testator was provided such a copy of the codicil. These were the only copies provided the testator and were supplied with formal or "blue backed" binding. The lawyer retained the originals. At the hearing to determine whether the codicil was revoked by destruction of the photocopy, substantial parol evidence was admitted demonstrating, without dispute, that the testator intended to revoke the codicil by destroying the photocopy in the presence of witnesses. Indeed, the parties have stipulated that the testator believed he was destroying the original of the codicil.
Redfearn Wills and Adm. in Fla., Section 8-6 (6th ed.), which relates to revocation of a will by revocation or destruction, explains:
Whenever the question is raised as to whether or not there has been a revocation by any destruction or obliteration, parol and other extrinsic evidence is necessarily admissible to show what acts were done by the testator and what his intentions were.
Of course, we are concerned with determining the testator's intent and then carrying I would also certify the issue as one of great public importance. If, as the parties assert, the practice of providing photocopies in lieu of multiple originals is widespread, we should have certainty with respect to the ability of a testatrix to revoke a will by destroying the...
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Estate of Tolin, In re
...for petitioner. Charles P. Johnson, Jr., Fort Lauderdale, for respondent. HARDING, Justice. We have for review In re Estate of Tolin, 594 So.2d 309, 310 (Fla. 4th DCA 1992), in which the Fourth District Court of Appeal certified the following question of great public MAY A CODICIL TO A WILL......
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Certifying questions to the Florida Supreme Court: what's so important?
...even within the same district, had resolved the jurisdictional problem associated with the rule. (26) Also, in In re Estate of Tolin, 594 So. 2d 309 (Fla. 4th DCA 1992), the dissent argued that the question concerning the destruction of a will should be certified because "[t]he case law is ......