Can You Probate a Copy of a Lost Original Last Will

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

Our office is probating a copy of a Will (the original cannot be found) in Monmouth County. There is no attorney’s name who drafted the Will, and the Will leaves an unequal distribution amongst the children.

What happens when you cannot find the original Will. The answer is to prepare and file a verified complaint, an order to show cause and a brief (with facts, legal argument and conclusion).

You have to provide sufficient information to the Probate Judge to support the conclusion that the decedent did not destroy the Will with an intent to revoke it under N.J.S.A. 3B:3-13. You also have to show due diligence in attempting to find the original. With respect to a brief, Monmouth requires a brief for every application.

In a reported N.J. case the court sets forth the burden of proof when probating a lost Will. If the original Will cannot be produced and was last seen in the custody of the testator, there is a presumption that it was revoked. The presumption can be rebutted by clear and convincing evidence and the burden of proof is on the proponent of the Will. Although the published cases are old, but the more recent unpublished decisions rely on the same old cases.

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