Opinion
No. 92-1848.
June 30, 1993.
Appeal from the Circuit Court, Palm Beach County, Vaughn J. Rudnick, J.
Jane Kreusler-Walsh, of Jane Kreusler-Walsh, P.A., West Palm Beach, and Charles R. Wilson, Lake Park, for appellant.
Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., and Timothy L. Whelen, West Palm Beach, for appellee.
The proponent of a lost will appeals a summary judgment and a final order directing payment of claims, expenses and distribution of estate assets. We reverse both orders.
The trial judge found as a matter of law that the proponent had failed to present sufficient evidence to overcome a presumption of revocation that arises when it is established that the testatrix was in possession of the will before her death and the will cannot later be located, citing In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA 1977). We stress that the trial court's determination was made after a hearing on motions for summary judgment and not after a trial.
We do not understand how the trial judge could have reached the conclusion he did without weighing the available evidence against the presumption. Summary judgment hearings are ordinarily not for weighing evidence. The proponent has demonstrated that genuine issues of material fact do exist. Summary judgment is therefore improper. Moore v. Morris, 475 So.2d 666 (Fla. 1985). We express no opinion as to whether the evidence produced by the proponent in the record for the summary judgment hearing would be sufficient after a trial to overcome the presumption.
REVERSED.
HERSEY, J., and DOWNEY, JAMES C., Senior Judge, concur.