By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate & Estate Administration Attorney

Recently, I was required to make an application before the Chancery Court in Monmouth County to file an application to have a copy of an original Will approved for probate.

In New Jersey, it is a requirement that an original Will be submitted for probate and not a copy. But as we all know, originals get lost and what happens if they can’t be found. Does that mean that the Will cannot be probated? The answer is no, there is a procedure which the Court recognizes to address the absence of an original when it is established that the true copy remains the testamentary intentions of its creator.

A last will and testament that contains the necessary elements for it to be valid under N.J.S.A. §3B:3-2 will generally be admitted to probate by the Surrogate of the county in which the decedent was a resident, with no further action needed to be taken by the Superior Court. For a will to be properly executed, the statute requires that the will be:

(1) in writing;

(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgement of the will.

But what happens if the executor cannot find the original will, and the original will was last seen with the testator and/or the testator had access to the original will at the time of death. The fact that it cannot be found after a person’s death raises a presumption that its creator destroyed it, meaning it was revoked. Because of this, “a doubt arises on the face of a will that the will has been lost or destroyed”. New Jersey Court rule R.4:82, requires that the Surrogate not admit the will for probate and the Superior Court must review the application and enter a judgment accordingly.

When an original will cannot be found, case law requires that the proponent of the purported will prove by clear and convincing evidence that the will was properly executed under the laws of this state and that the testator did not revoke the will. As to the second element, the “presumption of revocation does not arise unless the decedent had possession of, or at least access to, the original will during their lifetime.” Ultimately, the court must grapple with the question of the testator’s original intent. Finally, if there is no dispute by the parties of interest that the original was lost and that the purported copy “accurately provides the contents of the lost will,” the proponent is not required to put forth other evidence as to the execution and contents of the lost will.

To have a Last Will admitted into probate requires the filing of a Verified Complaint with a copy of the original will that meets all the formalities of a self-executing will as defined by statute. It is in writing and signed by the Decedent whose signature was simultaneously witnessed by two people. It helps if the Decedent acknowledged all pages of the purported will as his by signing his name or initials in the left margin of each page. The testimony of witnesses that the decedent kept heirs and family members aware of all assets, and believed the original will to be in his home, which a Plaintiff has searched to no avail is also probative.

Especially helpful is if the Decedent never told the Plaintiff he wished to revoke the will he had in place. In fact, a Decedent executed a codicil in the same will to change one of the charitable bequests making reference to the earlier original will being still in existence is very helpful.

To discuss your NJ Probate & Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.