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There is no question that no post-execution change in or to a will, whether accomplished without adherence to the statutory testamentary prerequisites by the testator himself, which is called an "alteration," or by an unauthorized third person, which is referred to as "spoliation," has any legal effect whatever upon the will itself which must be probated as if it had not taken place.
Robert E. Lowy died on March 8, 1982. On March 24 of that year, a six page document purporting to be his will, executed on January 27, 1982, was admitted to probate by the Dade County Circuit Court. More than a year after notice of administration had been served upon her under Sec. 733.212(1), Fla.Stat. (1981), the decedent's widow, Onelia Lowy, commenced proceedings which sought to demonstrate that the first four pages of the probated document--excluding the final ones bearing the testator's and the witnesses' signatures--were not contained in the will actually executed by Mr. Lowy. Onelia filed an amended petition against the personal representative of the estate of Mr. Lowy. The trial court ruled that Onelia’s amended petition was not facially sufficient, and dismissed the action.
Did Onelia’s petition adequately state a claim for relief based upon the alteration or spoliation of the will?
The court reversed the trial court's order that dismissed Onelia’s petition, and remanded for trial. The court held that Onelia’s petition adequately stated a claim for relief based upon the alteration or spoliation of the will. Onelia properly sought enforcement of the fifth paragraph because the court was required to enforce the contents of the true and unaltered will. Onelia’s petition did not have to comply with Fla. Stat. ch. 733.207 (1981) because Onelia had attempted to establish the true contents of the will, not that the will had been lost or destroyed. Onelia’s petition was not barred by Fla. Stat. ch. 733.212(1)(b) (1981) because the alteration or spoliation of the will did not specifically affect its validity.