By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Administration Attorney
When an original Will cannot be found, case law requires that the proponent of the will copy prove by clear and convincing evidence that (1) the Will was properly executed under the laws of New Jersey and that the testator did not revoke or intend to revoke the will. As background to the question of “can a copy of an original Will be admitted to probate, one must understand what the law requires of a valid Will.
A Last Will and Testament is valid if it contains the necessary elements to be probated under N.J.S.A. §3B:3-2. It must be:
- in writing;
- 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
- 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 acknowledgment of the will. Id.
The courts have taken several steps away from strict statutory compliance over the years. The “substantial compliance” doctrine has evolved to allow proponents of another competing document to overcome these formal defects which otherwise would cause a document to be rejected for probate. Also known as the “harmless error” doctrine, the trend of sidestepping “rigid insistence” on formality continues onward even to allow the probate of a writing not signed by the testator as his/her Last Will and Testament.
I will conclude discussion of this topic in Part 2 of this series.
To discuss your NJ Estate Probate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.