Disclaimer: This article explains general New Jersey law and is for informational purposes only. It is not legal advice. Consult a licensed New Jersey attorney about your specific situation.
Detailed Answer — How New Jersey handles lost or destroyed wills
When the original will cannot be located after a testator’s death, New Jersey law and courts treat two separate issues:
- Did the testator revoke the will? A will can be revoked intentionally by the testator, most commonly by burning, tearing, canceling, or otherwise destroying the original with the intent to revoke.
- If the will was not revoked, how can the estate’s executor or beneficiaries prove what the will said? If the original is lost or destroyed by accident or by someone else, the court can admit secondary evidence (copies, witness testimony) to prove the will’s contents and validity.
Key legal principles usually applied in New Jersey cases:
- Presumption of revocation when the original was last known to be in the testator’s possession. If the will was last seen in the testator’s control and cannot be found after death, courts commonly presume the testator revoked it. That presumption exists because a person who has possession could have destroyed it. The presumption, however, is rebuttable. Evidence that the testator did not intend revocation — for example, witness testimony that the testator kept the will in a safe place and told someone the will was safe, or evidence that someone else had access and a motive to hide or destroy it — can overcome the presumption.
- When the original is lost or destroyed by someone else (or accidentally), the will is not automatically revoked. If the testator did not intend to revoke the document, the will can still be admitted to probate if the court is satisfied, by credible secondary evidence, that the document was validly executed and that its provisions are accurately proven.
- Evidence the court will consider:
- Copies of the will (photocopies, scanned files, or digital files) or drafts outlining the same provisions.
- Testimony from the attesting witnesses who saw the testator sign the will and can describe its content and the testator’s state of mind.
- A self-proving affidavit (if a separate copy exists) or other contemporaneous documentary evidence, such as a saved email to an attorney or a signed summary.
- Witness testimony about the testator’s statements or actions indicating intent to revoke or not to revoke.
- Burden and standard of proof. Courts require convincing proof that the lost or destroyed will truly existed, was properly executed, and was not revoked. Many probate courts demand clear and convincing evidence (or similarly high standards) when admitting a will without the original. The more corroborating evidence you can provide, the better.
- Procedural step — filing to admit a lost or destroyed will. An interested person (executor nominee or beneficiary) normally files a petition in the county Surrogate’s or Probate Court asking the court to admit a copy of the will or otherwise establish the testator’s testamentary plan. The petition should attach all available copies and affidavits from witnesses and explain how the original went missing.
Practical example (hypothetical): A testator signed a will in 2018 and kept the original at home. After the testator’s death, no one can find the original. The nominated executor locates a photocopy of the will, locates one attesting witness who recalls the signing, and gathers email correspondence showing the will’s text. The executor files a petition with the probate court asking admission of the copy. The court evaluates whether the testator intended to revoke the will (no evidence of destruction), whether the copy and witness testimony reliably show the original’s content, and then may admit the copy as proof of the will for probate.
Where to find the law: New Jersey’s statutes governing wills and probate matters appear in Title 3B — Estates and Fiduciary Relations. See New Jersey Statutes, Title 3B, available at https://www.njleg.state.nj.us/Statutes/Title3B/. For practical probate procedures and local Surrogate’s Court rules, check the New Jersey Courts website (www.njcourts.gov) or the county Surrogate’s office where the decedent lived.
When a court will likely deny probate of a lost will
- If the court finds convincing evidence the testator deliberately destroyed the will to revoke it.
- If the petitioner cannot produce sufficient secondary evidence to establish the document’s execution and terms.
- If there is credible evidence of fraud, forgery, or undue influence that undermines the authenticity of the lost will or of the copies.
Helpful Hints — Steps to take if you cannot find a will in New Jersey
- Search carefully: check safe-deposit boxes, attorney files, bank safe storage, and secure home locations. Ask family members and the decedent’s attorney whether they have the original.
- Locate any copies: photocopies, scanned files, emails, or printed drafts. A contemporaneous copy is very useful.
- Find and interview attesting witnesses: obtain written affidavits from anyone who witnessed the will signing or who can attest to the testator’s intent and the will’s contents.
- Gather contemporaneous evidence: emails to an attorney, notes, or other documents that reflect the will’s terms or the testator’s intent.
- Document how the original went missing: write a timeline and collect statements about when the will was last seen and who had access.
- File promptly: statutes of limitations and probate filing deadlines vary; prompt action avoids complications and claims by other potential heirs.
- Consult a New Jersey probate attorney: an attorney can prepare the petition to admit a lost or destroyed will, assemble the necessary affidavits, and represent you in Surrogate’s Court or Superior Court probate proceedings.
- Consider estate administration alternatives: if you cannot establish the lost will, the estate may pass under intestacy rules. Learn how intestacy would distribute assets so you can assess your case.
Final note: Courts balance the testator’s presumed intent against the public interest in carrying out valid testamentary plans. New Jersey law allows admission of a will even without the original when evidence shows the will existed and was not revoked, but you must be prepared to present clear, organized proof. Work with counsel and collect all available documentation and witness statements before you petition the court.