Where an original last will and testament is lost or cannot be found upon the testator’s death, a photocopy of that will may be admitted to probate. In determining whether such relief is appropriate, “the key issue is whether the testator had the intent to revoke the missing will.” In re Estate of Schenecker, 2011 N.J. Super. Unpub. LEXIS 598 (App. Div. Mar. 10, 2011), certif. denied, 207 N.J. 189 (2011).
In Schenecker, the trial court’s decision to admit a copy of a will to probate was challenged on appeal. The trial court had found that the proponent had met the burden of proving that the original will had not been lost or destroyed by the testator. However, the opponent of the will argued that the photocopy should not have been admitted because the proponent had failed to prove what had happened to the original will. Id. at *18.
The Appellate Division rejected the will opponent’s challenge. It began by acknowledging the earlier County Court decision of In re Will of Roman, 80 N.J. Super. 481, 482 (Cty. Ct. 1963), which had held that “[c]lear and convincing evidence must be shown with reference to … the circumstances under which the will was lost, stolen or destroyed.” The Schenecker court declined to follow Roman, focusing instead on whether the testator had intended to revoke the missing will. 2011 N.J. Super. Unpub. LEXIS 598 at *19.
The Schenecker court affirmed the trial court’s conclusion that the proponent had proven, by clear and convincing evidence, that, “whatever may have happened to the original, [the decedent] did not intend to revoke the will.” Id. at *21.