Want to admit evidence from a will that is lost? Learn the rules on probating a lost will.

One common problem with will contests is that the records  are just not there anymore, they are too old. Did your Father execute a will last year without testamentary capacity and now you want to admit a will from thirty years ago in its place? Florida’s evidence code has rules related tohearsay that may keep your personal recollection of the family records out of the trial! Check out this case out of the Fourth District Court of Appeals on admission of hearsay evidence in the absence of the physical records.

What is Hearsay?

• West Palm Beach courts adhere to the Florida Evidence Code and its rules on hearsay.
• Do you know what hearsay is?
• Hearsay is a statement made out of court that you want to offer to prove what was said is true.
• In other words you may not be able to say, “the will said this…” without the physical copy of the will.
• If you are a witness to the will though there may be an applicable exception.

Probating a Lost Will

• Suppose that your father executed a will last year before he died and he left everything to someone who exercised undue influence.
• When the new will is admitted to probate you probably want to institute a will contest.
• When you win you are going to need to admit the old will into probate so what are you going to do if it was burned or destroyed?
• Few people realize that you can admit a lost will to probate.
• In fact the witnesses to the execution of the will in West Palm Beach can testify to the contents of a lost will.
• Watch out though because those witnesses cannot be beneficiaries of the lost will.
• Did you know that if a will is not lost there is no rule barring an interested witness (i.e. a beneficiary) from testifying to the valid execution of a will?
• Watch out though because other times you may find hearsay statements inadmissible in West Palm Beach probate court.
• Check out this recent (Aug. 19, 2015) case out of the Fourth District Court of Appealsin and for West Palm Beach.

Cardona & Palomino v. Nationstar Mortgage LLC

• This was an appeal from a mortgage foreclosure.
• The homeowners appealed the fact that the court allowed the bank to testify about certain business records without introducing the documents.
• Although there are exceptions for business records in some instances those statements were hearsay.
• On appeal the Fourth District reversed and sent the case for a new trial based on the admission of that hearsay.
• Have you lost a trial because of a hearsay statement?
• You may have as little as thirty days to file for an appeal!

Want to learn more about admitting “hearsay” testimony?

Check out the entire case by clicking here.