Recently, in In re Estate of Alnoor Jetha, the Seminole County Court denied a petition for attorneys’ fees brought by the nominated personal representative of a will that was denied probate. In Jetha, the nominated personal representative sought payment of his attorneys’ fees and costs incurred in litigating a lost will pursuant to Fla. Stat. § 733.106(2), which states:
A person nominated as personal representative, or any proponent of a will if the person so nominated does not act within a reasonable time, if in good faith justified in offering the will in due form for probate, shall receive costs and attorney’s fees from the estate even though probate is denied or revoked.
Citing the Fourth District’s decision in In Re Sangenito, 631 So.2d 1125 (Fla. 4thDCA 1994), the trial court found than an award of fees under Fla. Stat. § 733.106(2) required a showing by the would-be personal representative that (i) he acted in good faith; and (ii) that the will was offered in due form. The pertinent facts before the trial court in Jetha were identical to those before Fourth District in Sangenito: the original will at issue was last known to be in the possession of the testator; the will was lost or destroyed; and a purported photocopy of the will was offered for probate in its stead. These facts give rise to a legal presumption that the testator destroyed the will with the intent of revoking it. See In Re Washington’s Estate, 56 So.2d 545 (Fla. 1952). In both instances, the proponent of the lost will failed to rebut this presumption, compelling the conclusion that the will was revoked.
In Sangenito, the Fourth District held that the “due form” requirement could not be met, and attorneys’ fees could not be awarded, in offering for probate a will which was adjudicated to be revoked. As the facts at bar in Jetha were identical to those in Sangenito, the trial court denied the request for attorneys’ fees.