Yes, you can probate a lost will in New Jersey, but it is not as easy as probating an original will. A “lost will” is a will, the original of which cannot be found.
Generally, an original will is needed in order to file it for probate with the County Surrogate. Therefore, if you have a copy of the will, but not the original, or no copy at all, the will is considered “lost” under New Jersey law.
How Do You Probate a Lost Will In New Jersey?
New Jersey probate law allows for a lost will to be probated under limited circumstances.
New Jersey law presumes that if an original will cannot be found, then the testator intended to destroy and revoke the will. See How Do You Revoke a Will In New Jersey to learn more. But just because you cannot find the original will does not mean that the testator intended to revoke the will. After all, mistakes and accidents happen. Perhaps the will was just misplaced, accidentally destroyed, or even intentionally destroyed by someone other than the testator.
If All the Beneficiaries Agree, No Problem
In general, if the original will cannot be located but all beneficiaries or potential heirs of the Estate agree to probating a copy of the lost will, the will can be admitted to probate without much drama.
If The Beneficiaries Disagree, Not So Fast
If there is a dispute about whether the will was lost or intentionally revoked, the circumstances surrounding the absence of the original will are going to be closely examined by the New Jersey judge in order to determine whether the will was intentionally destroyed by the testator or was simply misplaced and cannot be found.
One side will argue that the testator intentionally revoked the will. The other side will argue that there was no intentional revocation, that the will was accidentally destroyed or misplaced, and will present evidence in an attempt to overcome the presumption of revocation.
How Do You Overcome the Presumption Of Revocation?
Each case of a lost will turns on its own facts. The New Jersey courts will examine the specific situation to determine whether the proponent of the lost will has overcome the presumption of revocation. Examples where a lost will might be admitted to probate include:
- A close friend or relative testified that they had the original will in their possession for safekeeping by the decedent and they accidentally lost it;
- The decedent’s house burned down and evidence shows that the will was in the house; and,
- The decedent’s will was held at the drafting attorney’s office, and was destroyed in a flood that occurred.
Basically, evidence that explains the disappearance of the will was not the result of the testator’s intent to revoke it will support the probate of a lost will under New Jersey law.
Case Study: In the Matter Of the Estate of Harold Becker
In In the Matter of the Estate of Harold Becker, the Appellate Division of the New Jersey Superior Court addressed a dispute over the validity of a lost will.
Here, decedent executed a will leaving everything to one of his three sons, Brandon. Brandon was incarcerated at the time the will was executed, and his father mailed the original of the will to Brandon in prison.
When the decedent died, Brandon could not produce the original will for probate. Brandon’s mother, the named executor, had to bring an action to admit a copy of the will (now considered lost) to probate. Brandon’s brothers, who were left out of the will, objected to probate of the lost will.
The New Jersey court admitted the lost will to probate over the objections of Brandon’s brothers. One of the key facts overcoming the presumption of revocation was that the decedent had surrendered possession of the original will to Brandon. Brandon’s brothers could not produce any evidence that the decedent had access to the will or had subsequently directed that the will be destroyed. The court stated:
The law of this state applicable to the establishment of lost wills is well defined. If such a will was last seen in the custody of the testatrix or she had access to it the fact that it cannot be found after her death raises the presumption that she destroyed it animo revocandi. This presumption may be rebutted but in order so to do the evidence must be clear, satisfactory and convincing and the burden is on the proponents. The proof necessary to rebut the presumption of revocation must be sufficient to exclude every possibility of a destruction of the will by the testatrix herself.
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If a will is shown to be out of the testator’s possession, the party asserting revocation “must show that it came again into his custody, or was actually destroyed by his direction.” Will of Calef, supra, 109 N.J. Eq. at 185 (citations omitted). However, this standard is “qualified by the rule of access, or opportunity of repossession, and possibility, not probability, of such access is controlling.” Ibid. (citations omitted). This rule “does not require an actual tracing of the will back into the possession of the testatrix, but is satisfied by a showing of access, that is, opportunity of repossession, and upon such showing the presumption of revocation remains until rebutted by evidence which is clear, convincing and satisfactory.” Id. at 186 (emphasis in original).
In this case, the New Jersey court found the presumption of revocation did not apply to the lost will because the testator surrendered his possession and access to the will.
