Upson v. Carville's Estate, LL-125
| Decision Date | 06 April 1979 |
| Docket Number | No. LL-125,LL-125 |
| Citation | 369 So.2d 113 |
| Parties | Dianna UPSON, Appellant, v. The ESTATE of Helen E. CARVILLE, Deceased, Appellee. |
| Court | Florida District Court of Appeals |
J. Peyton Quarles, Law Offices of T. Hulen Ray, Deland, for appellant.
Berrien Becks, Sr., of Becks & Becks, Daytona Beach, Samuel Spector and Guyte P. McCord, III, of Spector & Tunnicliff, Tallahassee, for appellee.
Dianna Upson, daughter of the decedent Helen E. Carville, appeals the order of the trial court granting a petition to establish and probate a lost will and denying a counter-petition to appoint appellant the sole surviving heir. We affirm.
The record reveals that Helen E. Carville executed a will in 1965 leaving her estate in trust to her two grandchildren. Her attorney had retained an unexecuted carbon copy of the will and, when the executed copy which had been retained by Carville could not be found, he filed a petition to establish and probate the lost will. Appellant filed an objection to the petition and a counter-petition to have herself named the sole surviving heir.
The evidence revealed that Carville was meticulous about her affairs, keeping all of her important papers, including her will, in a metal box in her office-sewing room and maintaining a ledger to record every expenditure. The metal box was seen in her possession a week or two before her death; but after her death, it could not be found. There was testimony that Carville had talked with friends about making a new will or having done so, but no one had seen that will or had heard her say she had executed it. Furthermore, although the testimony was that her proposed new will would provide for a great grandchild and provide for a later distribution of the corpus of the trust to her grandchildren and that her feelings toward appellant had softened during the last two months of her life, there was no testimony that Carville ever expressed any intent to leave her estate to appellant. There was clear evidence that she desired to die testate.
In Florida there is a presumption that if a properly executed will which is retained by the testator cannot be found at death, in the absence of the evidence to the contrary, there is a presumption that the will was destroyed by the testator with the intention to revoke it. In re Washington's Estate, 56 So.2d 545 (Fla.1952). We believe that there was evidence to the contrary sufficient to overcome the presumption.
Appellant relies on In...
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Lonergan v. Estate of Budahazi
...319 (Fla.1993); In re: Estate of Parson, 416 So.2d 513 (Fla. 4th DCA 1982), rev. denied, 426 So.2d 27 (Fla.1983); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979). The proponent of admitting such a lost will to probate has the burden of introducing competent substantial eviden......
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Estate of Parson
...In re Evers' Estate, 160 Fla. 225, 34 So.2d 561 (1948); In re Washington's Estate, 56 So.2d 545 (Fla.1952); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979). The presumption may only be overcome by competent and substantial evidence, the lack of which requires a finding of rev......
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Walton v. Estate of Walton
...do so, may serve to rebut the presumption that the will has been revoked. Estate of Parson, 416 So.2d at 515; Upson v. Carville's Estate, 369 So.2d 113, 114 (Fla. 1st DCA1979) (presumption that lost or destroyed will has been revoked is overcome when person with adverse interest in will had......
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Balboni v. Larocque
...In re Estate of Washington, 56 So.2d at 547; Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla. 5th DCA 1996); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979); 2) evidence that the will was accidentally destroyed, see In re Estate of Carlton, 276 So.2d at 833 (presumption w......