Practice Tips: Probating a Photocopy

A properly executed Will has two general functions.  First, it allows the testator to set forth a distribution scheme and nominate fiduciaries.  Most clients already know that.  The second function of a properly executed Will is to make the Will amenable to probate in the Surrogate’s Court rather than in the Superior Court.  No matter how much thought goes into the distribution scheme and the fiduciary nominations, if the original Will is lost the second function is also lost.

The second most common Probate Part pleading in New Jersey is an action to probate a photocopy of a Will because the original is lost (the most common pleading is an action for an adjudication of incapacitation, but that’s a topic for a different day).  An action to probate a photocopy of a lost Will almost always involves a Will that was properly executed and could be admitted to probate in the Surrogate’s Court if only the original could be located.  In New Jersey, the inability to locate the original Will generally creates a rebuttable presumption that the person who wrote the Will destroyed it as an act of revocation.  The Surrogate’s Court cannot admit a photocopy of a Will to probate.  The litigants have to go to Superior Court, which is a far more time consuming and expensive process.  In Superior Court, the proponent has to establish not only that the document complies with the Will statute, but must also submit proofs sufficient to overcome the presumption of revocation.

You can save yourself and your clients a great deal of trouble by giving them clear, written instructions regarding the importance of keeping the original Will in a location where it can be found after the testator’s death.  It’s a good idea to keep a copy of the letter in your file.  Simply put, if the issue arises your client won’t be around to assure the parties to the estate that you advised your client of this danger, which now has to incur significant expense to secure a probate judgment.