Of lost wills and "virtually" adopted heirs

In re Estate of Musil, --- So.2d ----, 2007 WL 2317189 (Fla. 2d DCA Aug 15, 2007)

The stuff of most probate disputes isn't the dramatic will contest.  Rather, it's the secondary, less sexy bread-and-butter issues that usually rule the day.  For that reason cases like the linked-to opinion are useful. Practitioners and judges alike get practical guidance they can use over and over again.

What if I can't find the original will, what if I only have a copy?

I get this question with some frequency.  I'm sure most probate practitioners would say the same. In the linked-to opinion the court does a good job of explaining what needs to be done to have a photocopy of a will accepted into probate:

A will that was in the possession of the testator before his death and that cannot be located after his death is presumed to have been destroyed by the testator with the intention of revoking it. See Carlton v. Sims ( In re Estate of Carlton), 276 So.2d 832, 833 (Fla.1973); Walton v. Estate of Walton, 601 So.2d 1266, 1266 (Fla. 3d DCA 1992). The proponent of the lost or destroyed will bears the burden of overcoming the presumption that the will was intentionally destroyed. Daul, 754 So.2d at 848. “The first step in overcoming this presumption is” to establish the terms of the will and to offer it for probate. In re Estate of Parker, 382 So.2d 652, 653 (Fla.1980). Section 733.207, Florida Statutes (2005), outlines the procedure for establishing a lost or destroyed will:

Any interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate. The specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.

See also Fla. Prob. R. 5.510 (stating additional requirements for the establishment and probate of a lost or destroyed will).

But he raised me like his own son, don't I have any rights?

According to U.S. census data married couples made up 71% of all households in 1970 but decreased to 53% in 2000.  Nontraditional families, made up of adults raising children who are not biologically related to them, are obviously an increasingly common phenomenon.  Many of these "parent/child" relationships are never formalized in an adoption proceeding.

Against this backdrop we can expect to see more cases where people who are not related to a decedent by blood or adoption feel entitled to a stake in the estate.  "Virtual adoption" is the only available remedy in these cases.  Get to know this concept, you'll be seeing more of it (see here).  Here's how the court in the linked-to opinion summarized the elements of this claim in Florida:

Following the reasoning in [Sheffield v. Barry, 14 So.2d 417 (Fla.1943)] and in other cases, the Fifth District listed the five elements of virtual adoption in its review of a judgment that determined heirs. Poole v. Burnett (In re Heirs of Hodge), 470 So.2d 740, 741 (Fla. 5th DCA 1985). The elements of a virtual adoption include:

1. an agreement between the natural and adoptive parents;

2. performance by the natural parents of the child in giving up custody;

3. performance by the child by living in the home of the adoptive parents;

4. partial performance by the foster parents in taking the child into the home and treating the child as their child; and

5. intestacy of the foster parents.

Id. The Fifth District also recognized the Sheffield court's acknowledgment that in Florida, the purpose of virtual adoption is to provide the child with “an enforceable contractual right.” Id.

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