Can You Still Win a Probate Case When the Original Will is Lost or Destroyed?  Part 2 of a 2 Part Series

HNWWill Contest and Probate Litigation

probate administrationProving That the Destruction of a Will Was Not Done by the Deceased

In Part 1 of this blog, I discussed how to prove the existence of a will after a testator’s death.  Part 2 of this blog goes on to discuss how to prove that the destruction of a will was not done by the deceased creator of the missing will.

  1. To prove the circumstances under which a will was destroyed, the proponent must produce evidence that is sufficient “to exclude every possibility of the purposeful destruction of the will by the testator himself intending to thereby revoke it.”
  2. If the proponent seeks to prove that someone other than the testator destroyed the will, they must produce clear and convincing evidence to support this theory.
  3. The Court will never presume “that someone would take and destroy a Last Will, because to do so would be to presume a crime.”

The allegation that a will has been destroyed by a third party and not its creator requires solid (as in) concrete evidence. In one case, it was argued that the testator’s daughter, who was left only a small inheritance under her father’s will, had destroyed the will.  The Court stated that “this is a serious charge, and should be sustained only by the clearest evidence before it can be believed.”  Because only one witness testified to seeing her break into the desk, and other witnesses testified to the contrary to these allegations, the Court found the evidence was insufficient to prove that the daughter had taken the will. Therefore, proof that a third party destroyed a will requires (practically speaking) no contradicting evidence.

However, circumstances may allow a Court to make some inferences based on one’s motive for destruction. In one case (In re Calef’s Will), when evaluating who could have been responsible for the loss or destruction of a will, the Court after trial commented that “there is no evidence whatsoever indicating any motive or opportunity for destruction of the will by anyone except [the testatrix] herself.”  Additionally, in Wyckoff v. Wyckoff, where the executor admitted to destroying the will because he believed it was worthless, the Court found that there was no “rational ground to infer any fraudulent purpose in the destruction of the will” because the executor was “not the next of kin of the testatrix, and could gain nothing by her intestacy.”  Therefore, although the bar is quite high as to what evidence is necessary to prove destruction of a will by a third party, the fact that the person being accused of its destruction has something to gain from the destruction can support such a theory.

A similar conclusion was reached in In re Estate of Braun, which involved a dispute regarding the destruction of a will. After the testatrix’s death, her estranged daughter accessed her home several times to search for her will, and suggested she could not find it. The Court then appointed a neutral party to act as the administrator of the mother’s Estate, who found a copy of the will in the home, but could not find the original. The Court concluded that the testatrix would not have destroyed her own will with the intent to revoke it, because several witnesses testified as to her desire to provide for her niece and sister, who had special needs.

Accordingly, “without directly finding that [the estranged daughter] found and destroyed the will, [the Judge] found [the] original will,” had been destroyed but allowed the copy of the will to be offered for probate. In appropriate cases, circumstance may allow a Court to infer that a Last Will existed, and was destroyed without the decedent’s knowledge or consent.

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  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

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