In the case of a lost or destroyed will, “the burden of proof is upon the proponent” to show, with clear and convincing evidence,” that the lost alleged will was (1) in fact signed, (2) the contents of said will, and (3) the circumstances under which the will was lost.
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Proving the Existence of a Will After the Testator’s Death
The testimony of a single credible witness is sufficient to prove that a will existed after the testator’s death. In a well-written judicial opinion, the facts established that the testator had executed a will which had not been revoked but also the original could not be found. The decedent’s widow testified that this will was kept in a desk along with other valuable papers, and that she had seen the will in that desk the day after his death. Two days later, she found that the desk had been broken into, as “the lock had been pried off,” and “there were marks showing that force had been applied; and the will was gone. The Court held that “this evidence was sufficient proof that there was a will in existence at the testator’s death.” Therefore, the testimony by only one witness was deemed sufficient to prove that a Last Will & Testament was in existence after the testator’s death.”
Stay tuned for Part 2 of this blog where I discuss how proving that the destruction of a will was not done by the deceased.
To discuss your NJ estate administration or probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Probate Litigation Attorney