The Dogs, the Codicil and the Hard Drive

This post is about a probate case that involves a “lost codicil.”  Smith v. DeParry, __ So.3d __, 2012 WL 1521541 (Florida Court of Appeals 2012).  I’m doing a post on it because the lost codicil raised some interesting issues that go to what is, and is not, an acceptable “copy” of a lost, computer-generated document. 

As Wikipedia explains, a codicil is “a document that amends . . . a previously executed will.” Under Florida Statutes § 722.208, when a codicil is discovered, “any interested person may petition to . . . probate” it.  Wikipedia reviews what is involved in probating a will and/or a codicil.

The case concerns the will of, and lost codicil for – the estate of Scott P. Smith, who

owned two fox red Labrador retriever dogs. The subject of the lost codicil was a bequest of $40,000 to establish a pet trust for the health, care, and welfare of the dogs. The initial trustee of the pet trust was Lance Smith, who was also one of the Co–Personal Representatives. When the Co–Personal Representatives filed their initial petition to establish the lost codicil, Lance Smith had already transferred $40,000 of the estate's money to fund the pet trust and had assumed the care, custody, and control of the dogs.

Scott D. Smith, III, a minor, is the [Scott P. Smith’s] grandson and a beneficiary. Astrid DeParry is the guardian ad litem (the GAL) for the minor. The GAL contested the Co–Personal Representatives' petition to establish the lost codicil on behalf of the minor beneficiary.

Smith v. Deparry, supra.  (Florida Statutes § 732.201(28) defines a personal representative as the person “appointed by the court to administer the estate and refers to what has been known as an . . . executor”).

The other Co-Personal Representative is Thomas Allen, a “longtime attorney” for Scott P. Smith. Smith v. Deparry, supra.  On October 19, 2007, he left his office in Orlando and went to Smith’s residence in St. Petersburg, where the will was “formally executed.” Smith v. Deparry, supra.  Smith, 77, was “in failing health.”  Smith v. Deparry, supra.  “Simultaneously with the presentation of the will, and for reasons that were unclear,” Allen presented Smith with the “first codicil to the will.”   Smith v. Deparry, supra. 

The codicil “established a $40,000 trust fund through which Lance Smith . . . would care for” Smith’s dogs after his death.  Smith v. Deparry, supra.  When Allen presented it to Smith, he “learned a dog's name had been misspelled”, so he went back to his office, “corrected the codicil”, and returned to Smith’s home on October 24, 2007.  Smith v. Deparry, supra. After Smith executed the codicil, Allen took it and again went back to his office in Orlando, where “ the document was misplaced, and it has never been found.” Smith v. Deparry, supra. Smith died on March 30, 2008.  Smith v. Deparry, supra.

Evidence presented at a hearing the probate court held on whether the lost codicil should be recognized as legally binding, showed that after Smith’s death, the

Co–Personal Representatives filed a Petition for Administration of this estate on April 7, 2008. Although Paragraph 8 of that Petition disclosed the existence of the October 19, 2007 Will, neither [Lance Smith nor Allen] under penalties of perjury, disclosed the existence of the Codicil. . . . On April 14, 2008, Letters of Administration were issued and the estate administration commenced.

Approximately three months after [Smith’s] death, Allen . . . realized the Codicil was missing. He promptly notified [Lance Smith]. The following January 23, 2009, without having locat[ed] the missing Codicil, [Lance] Smith, as Co–Personal Representative[,] transferred $40,000 to himself as Trustee of a trust purportedly established by the missing Codicil. In June of 2009, a Federal Estate Tax Return Form 706 was filed reflecting the $40,000 transfer of funds.

More than a year later without having located the missing Codicil, on July 12, 2010, [Lance Smith and Allen] filed the original request to Establish the Lost Codicil. No reason was given for the delay in advising the Court that a Codicil existed or that it had been lost in Allen's office. . . .

Smith v. Deparry, supra.

In issuing these findings, the probate court judge noted that

[i]t's difficult to understand why two competent, professional individuals, both with clear recollection of the signing of the Codicil, failed to remember the existence of a Codicil at the time they filed the Petition. That is particularly true where the Codicil had the effect of establishing a $40,000 trust fund through which one of the Co–Personal Representatives would pay for the upkeep of two dogs. 

Smith v. Deparry, supra.

As noted above, DeParry challenged Lance Smith’s and Allen’s petition to have the codicil probated.  Smith v. Deparry, supra.  After hearing the evidence outlined above, the probate judge denied their petition, and they appealed.  Smith v. Deparry, supra.

The Court of Appeals began its analysis of their appeal by explaining that

`[a]ny 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.’

Smith v. Deparry, supra (quoting Florida Statutes § 733.207).  Section 733.207’s use of the term “will” includes a codicil. Smith v. Deparry, supra.  

The testimony of “one disinterested witness” therefore suffices to prove the content of a lost codicil if the proponent of the codicil produces a “correct copy” of it.  If the proponent cannot produce a correct copy of the codicil, he/she/they must present the testimony of “two disinterested witnesses” to prove its contents.  Smith v. Deparry, supra.   

At the final hearing on whether the codicil should be probated, Lance Smith and Allen produced “a copy of the codicil that they generated from the hard drive of the computer in Mr. Allen's office that was used to prepare the original document.”  Smith v. Deparry, supra.  The first issue the court had to decide was whether this qualified as a “correct copy” of the codicil.  Smith v. Deparry, supra.   

In In re Estate of Parker, 382 So.2d 652 (1980), the Florida Supreme Court held that “a preliminary, handwritten draft of a typewritten original of a lost will” does not constitute a “correct copy” under § 733.207. Smith v. Deparry, supra. The Supreme Court held that a preliminary draft is not a “correct copy” because  (i) “[i]t is not a ‘copy’ because a draft is not a double or a true transcript of an original writing”; and (ii) “[i]t is not ‘correct’ because it is not the approved or conventional way of making a copy of an original writing.” In re Estate of Parker, supra.  It also explained what constitutes a “correct copy:”  

The word `copy’ . . . means a double of an original instrument, such as a carbon or photostatic copy. The word `correct’ modifies and qualifies the word `copy.’ It strengthens the already strong word `copy.’ We therefore conclude that the words `correct copy’ means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.

In re Estate of Parker, supra.

The probate judge held that the copy of the codicil generated from Allen's office computer “did not qualify as a correct copy under the statute” because the “computer-generated copy of the missing codicil was a draft” and, as such, could not qualify as a “correct copy” under the Supreme Court’s holding in In re Estate of Parker, supra.  Smith v. Deparry, supra.   

The Court of Appeals found that the judge erred, “[f]or three reasons.”  Smith v. Deparry, supra.   The first was that in the Parker case, the “copy” of the allegedly lost will was a

handwritten, preliminary draft of a later typewritten version of the original lost will. . . . [T]he draft at issue in the Parker litigation differed substantially from the lost original will. Here, there was testimony from . . . Allen's office assistant, that the content of the computer copy of the codicil was identical to the document she prepared for [Smith’s] approval and signature. Thus the computer copy of the codicil was not a preliminary draft of the sort disapproved by the supreme court in Parker II.

Smith v. Deparry, supra.

The second reason was that the probate judge

misconstrued the portion of the supreme court's holding in Parker referring to the requirement of `an identical copy such as a carbon or photostatic copy.’  Both the probate court and the GAL read this language as exclusive. In their view, the only type of copy that can be used to prove the content of a lost will or codicil under the statute is a carbon copy or a photocopy. Such an interpretation would preclude the use of a computer-generated copy.

However, the supreme court's language in Parker is not so restrictive. In [its] reference to `an identical copy such as a carbon or photostatic copy,’ the carbon copy and the photostatic copy are merely examples of identical copies. . . . However, the carbon copy and the photocopy are not the only kind of copy that can qualify as an identical copy of an original document. Unquestionably, a copy of a document generated on a computer can be identical to -- and indistinguishable from -- the original.

Smith v. Deparry, supra.

And the third reason was that the Florida Supreme Court decided the Parker case in 1980:

Although some personal computers were sold in the late 1970s, the personal computer did not come into general use in law offices and other businesses until . . . after Parker was decided.   

We do not think that the supreme court's reference . . . to carbon copies and photostatic copies as examples of `an identical copy’ was intended to limit for all time the types of copies that could be used to establish the contents of a lost instrument, regardless of future technological developments. . . . [I]t would be an anachronism to adopt a rule that a copy of a lost will or codicil retrieved from the hard drive of a computer or from a cloud database cannot be a `correct copy’ within the meaning of § 733.207.

Smith v. Deparry, supra.

The Court of Appeals therefore held that the probate judge erred in finding that Lance Smith and Allen had failed to produce a “correct copy” of the codicil.  Smith v. Deparry, supra.  This meant that the testimony of one disinterested witness would establish the content of the lost codicil.  Smith v. Deparry, supra. (Since the probate judge found Lance Smith and Allen had not produced a “correct copy” of it, they had to provide the testimony of two disinterested witnesses to establish the codicil’s content.  Smith v. Deparry, supra.  

 They apparently offered themselves as the witnesses, but the judge found they were not qualified because Florida Statutes § 731.201(23) says the personal representative of an estate is an “`interested person’”.  Smith v. Deparry, supra.)

The court found there “is a significant distinction between the” concepts of an “interested person” under § 731.201(23) and a “disinterested witness” under § 733.207, i.e., the statute that requires the testimony of such a witness (or witnesses) to prove the content of a lost will or codicil.  Smith v. Deparry, supra.  The former denotes someone who has the right to notice and an opportunity to be heard in a probate proceeding, while the latter denotes “a person `who has no private interest in the matter at issue.’”  Smith v. Deparry, supra (quoting Black’s Law Dictionary).   The court explained that

the personal representative would [therefore] be an interested person entitled to notice of the proceeding and opportunity to be heard. Thus the personal representative can be an interested person but still participate in a proceeding as a disinterested witness.

Smith v. Deparry, supra. 

The Court of Appeals then found that while the probate judge erred in holding that Lance Smith and Allen were not disinterested witnesses for the purpose of establishing the content of the lost codicil, they were “legally disqualified from establishing the content of the lost codicil . . . because they were both interested in fact.” Smith v. Deparry, supra.  It found that Lance Smith was not disinterested because “he stood to gain or lose as a direct result of the probate court’s ruling on the petition” to probate the codicil.  Smith v. Deparry, supra.  

Lance Smith and Allen then argued that Allen was "disinterested," but the Court of Appeals did not agree.   Smith v. Deparry, supra.  It found that his interest derived from “at least” two factors:

First, [he] was directly responsible for the loss or destruction of the codicil from which [Lance Smith] was to benefit. An adverse ruling on the petition might result in a claim by [Lance] Smith against Allen for damages. . . . Second, if [Lance] Smith failed to return the $40,000 to the estate with interest, the beneficiaries might make a claim against Allen, as Co–Personal Representative. . . . Thus Allen . . . did not qualify as a disinterested witness because of his direct stake in the outcome of the pending proceeding. 

Smith v. Deparry, supra.  

(Allen’s office assistant did not qualify, either, because while she prepared the codicil, she did not go to St. Petersburg for its execution, and therefore did not have firsthand knowledge of “`what document may or may not have been presented to” Smith for his signature.  Smith v. Deparry, supra.)

The Court of Appeals therefore affirmed the probate judge’s order denying the petition to probate the lost codicil. Smith v. Deparry, supra.