Overview
If you need to determine whether the document you received is the original last will and testament or only a copy, there are clear, practical steps to follow. This guide explains how to inspect the document, what Florida law says about admitting wills to probate, and what to do if the original is missing. This is educational information only and not legal advice.
Detailed Answer
1. First, do not alter the document
Preserve the document exactly as you found it. Do not sign, fold, staple, erase, or otherwise change it. If the original is later needed in court, any alteration can raise questions about authenticity.
2. Physical signs that you may have the original
- Ink signatures: Originals typically show signatures in ink rather than uniform toner marks. Look closely for ink penetration, varying ink density, or impressions on the paper.
- Pen pressure and indentations: Originals often leave indentations or impressions that copies (photocopies or scans) do not. Hold the paper to the light or gently tilt it to see indentations.
- Different inks and handwriting: Original witness signatures are often in different inks and handwriting styles.
- Notary or self-proving affidavit: Many Florida wills include a notarized self-proving affidavit attached to the will. A properly executed self-proving affidavit (notary seal and jurat) allows the will to be admitted to probate without live witness testimony. Presence of an original notary stamp/seal and an original jurat page increase the likelihood the document is an original.
3. What Florida law requires for a valid attested will
Florida’s probate statutes set formal execution rules for wills. A typical attested will must be in writing, signed by the testator (the person making the will), and witnessed by two competent witnesses. Florida law also recognizes self-proved wills (a sworn and notarized affidavit signed by the testator and witnesses) that streamline probate. For general statutory guidance see Chapter 732 of the Florida Statutes: Florida Statutes, Chapter 732 (Wills and Succession).
4. If you only have a copy
Possessing only a photocopy or electronic copy does not automatically mean the will is invalid. Florida law provides a procedure to admit a lost or destroyed will to probate. Under the lost-or-destroyed-will statute, you may petition the probate court to admit a copy if you can establish, by clear and convincing evidence, the will’s due execution and that the decedent did not revoke it. The statute addressing lost or destroyed wills is available here: Fla. Stat. § 732.516.
5. Evidence the court will consider
- Testimony of the subscribing witnesses confirming they saw the testator sign the will (if witnesses are available).
- Proof of the will’s contents via a copy, plus other clear and convincing evidence that the original existed and was not revoked.
- Testimony about the testator’s habits and where they kept important papers (safe, attorney’s office, bank safe-deposit box).
- Forensic document evidence (if necessary), such as ink analysis or handwriting comparison, though courts often rely first on witness testimony.
6. Practical steps to take right away
- Photograph the document as you found it and make a single photocopy for your records; label the copy as such. Do not mark the original.
- Contact the attorney who prepared the will or the notary shown on the document. Many attorneys keep drafts or final originals in their files.
- Ask the person who gave you the document where they found it (safe, filing cabinet, bank box) and whether any other persons have access.
- Locate and contact the witnesses named on the will. Their testimony is often decisive in probate proceedings.
- If the document is suspected to be a copy or if the original is missing, consult a probate attorney about filing a petition under Fla. Stat. § 732.516 to admit a lost or destroyed will.
7. When to consider forensic or professional help
If authenticity is disputed and witnesses are unavailable or unhelpful, a forensic document examiner can analyze ink, paper, indented writing, and other physical characteristics. Use this option only after consulting a probate attorney—courts give different weight to expert testimony depending on the case facts.
Helpful Hints
- Check for a self-proving affidavit (notarized jurat). If present and original, probate is usually faster because witnesses typically don’t have to testify in court.
- Look for two witnesses’ signatures in different inks—this strongly suggests a signed original.
- Search likely storage locations (attorney office, bank safe-deposit box, home safe). Attorneys often retain originals.
- Keep a careful record of everyone who handles or views the document to avoid later chain-of-custody disputes.
- Don’t rely solely on copies: even a high-quality scanned copy may be admitted if you can provide sufficient evidence under Fla. Stat. § 732.516—but be prepared to prove it was the testator’s last will.
- If you suspect tampering, stop handling the document and contact a probate attorney promptly; tampering may have criminal implications.
- Contact the clerk of the circuit court in the county where the decedent lived for local probate filing requirements and forms.
Next Steps and When to Get Legal Help
If you are uncertain about authenticity, reach out to a Florida probate attorney. An attorney can help you:
- Determine whether the document appears executable under Florida law;
- Locate and contact witnesses and the preparer/notary;
- Prepare and file a petition to admit the will to probate or a petition under Fla. Stat. § 732.516 if the original is lost or destroyed;
- Coordinate any necessary forensic analysis or court-ordered procedures.
Remember: time matters. Probate deadlines and practical issues (safe-deposit access, assets that require immediate attention) can make early action important.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Florida probate attorney.