In re Estate of Bancker - 232 So. 2d 431 (Fla. Dist. Ct. App. 1970)

Rule:

The intention of the testator has always been the primary consideration in construing wills.

Facts:

Adrian G. Bancker, the decedent, executed a second will to include a different alternative executor. Several months later, the decedents became disenchanted with his attorney who drew the second will and who named himself the alternative executor. The decedent's first attorney, who drew the first will, informed the decedent that he could reinstate the first will by destroying the second will. The decedent subsequently directed his wife, stepdaughter, and her husband to destroy the second will. The decedent remained in his bed, although he was not bedridden, while his wife, step-daughter, and her husband went into another room, removed the will from a wall safe and destroyed it by tearing it into pieces and flushing them down a toilet. The doors were closed between the decedent and the wall safe and he could not see the destruction. He was informed subsequently that it had been done and he nodded his head in approval. Upon decedent's death, appellant widow presented the original will for probate and obtained letters testamentary. In a will contest with decedent's children, appellant countered by attempting to re-establish the second will for probate. The trial court ruled that the original will was invalid and held that appellant's petition did not sufficiently re-establish the second will, therefore the decedent died intestate. Appellant sought review of the decision.

Issue:

Under the circumstances, could it be properly concluded that the decedent died intestate? 

Answer:

No.

Conclusion:

On appeal, the court reversed the trial court’s decision, and held that the second will was sufficiently re-established and not properly revoked. The court noted that a copy of the second will was entered into evidence and properly identified by disinterested witnesses as required by Fla. Stat. ch. 732.27(3) to re-establish a destroyed will. The court held that the decedent clearly did not intend to die intestate, as both attorneys who drafted wills for the decedent testified that he wanted everything to go to his wife if she survived him. The court noted that the decedent attempted to revoke his second will, and was under the impression that the destruction would reinstate the original will which was practically identical in content. However, since the second will was not revoked in the presence of the decedent, it was not properly revoked by destruction, pursuant to the Florida Probate Law, F.S. 731.14(1), F.S.A. Accordingly, the court reversed the lower court’s ruling that the second will was not sufficiently re-established for probate, and further found that the same was not properly revoked.