Walton v. Estate of Walton, No. 91-2292

• Court: Court of Appeal of Florida (US)
• Writing for the Court: Before SCHWARTZ; NESBITT
• Citation: 601 So.2d 1266
• Parties: Dorothy WALTON & Rodger Walton, et al., Appellants, v. The ESTATE OF Mary E. WALTON, Deceased, et al., Appellees. 601 So.2d 1266, 17 Fla. L. Week. D1599
• Docket Number: No. 91-2292
• Decision Date: 30 June 1992

Page 1266

601 So.2d 1266 Dorothy WALTON & Rodger Walton, et al., Appellants,
v.
The ESTATE OF Mary E. WALTON, Deceased, et al., Appellees. No. 91-2292.
601 So.2d 1266, 17 Fla. L. Week. D1599 District Court of Appeal of Florida,
Third District. June 30, 1992.
Rehearing Denied Aug. 4, 1992.

Hubert G. Roberts, Hialeah, and Malcolm L. Kneale, Miami, for appellants.

Holden & Holden and Frances Holden, Hialeah, for appellees.

Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.

NESBITT, Judge.

We reverse an order denying a petition for the establishment of a lost or destroyed will. Mary E. Walton's original executed will could not be found after her death, thus giving rise to the presumption that she had destroyed the will with the intention of revoking it. We conclude that on the facts as presented to the trial court, this presumption was rebutted by competent and substantial evidence. Accordingly, we reverse the trial court's order denying the petition for the establishment of the lost will.

We begin with the presumption that a will which was in the possession of the testator prior to death and which cannot be located subsequent to death was destroyed by the testator with the intention of revoking it. In re Washington's Estate, 56

Page 1267

So.2d 545 (Fla.1952); Estate of Parson, 416 So.2d 513, 515 (Fla. 4th DCA1982), review denied, 426 So.2d 27 (Fla.1983). The presumption may only be overcome by competent and substantial evidence, the lack of which requires a finding of revocation. In re Washington's Estate, 56 So.2d at 547 (evidence sufficient to overcome presumption that a lost will has been destroyed included intestacy heirs inquiring about certain deeds belonging to decedent, having access to decedent's home, and an opportunity to destroy the will); Estate of Parson, 416 So.2d at 515; In re of Baird's Estate, 343 So.2d 41, 43 (Fla. 4th DCA1977).

In concluding that the trial court erred in denying appellants' petition to establish the lost or destroyed will, we reviewed the circumstances surrounding the will's execution, as well as what happened in the months preceding the decedent's death. At the decedent's request, one Earl Frederick Booth, a eucharistic minister of the Catholic church, drafted decedent's will in October 1985. The will was properly executed in the decedent's home, and the original turned over to the decedent. Booth retained a xeroxed copy of the will for himself. Being childless and widowed, the will favored Rodger Walton, the decedent's late husband's nephew, and his wife Dorothy Walton, the appellants here, as well as other family members and friends. The appellees are the decedent's heirs-at law, who will share equally in the estate in the absence of a will. They are the decedent's four surviving nieces and nephews, only one of whom was named in the will.

In August 1987, the decedent was hospitalized when she fell and broke her leg. Unable to physically care for herself because of her fractured leg, she subsequently placed herself into a nursing home. While residing in the nursing home, the decedent became very ill. In January 1988, she was transferred to a hospital, and ultimately diagnosed with terminal cancer.

In early January 1988, before decedent's transfer to the hospital from the nursing home, Marilyn Blawie, a resident of California, and a licensed attorney in California and Connecticut, visited the decedent in the nursing home. James Blawie, Ms. Blawie's husband, is decedent's nephew, and one of the four remaining intestacy heirs. Ms. Blawie testified that at that time, decedent asked her to search her home for certain documents which decedent had hidden there, as well as to retrieve the documents she had kept in her safety deposit box at her bank. Among the documents Ms. Blawie found in...