Is a Damaged Will an Invalid Will? Part 3

In this third post of three, I finish our discussion concerning a recent call we received from Son who discovered that Dad’s will had been accidentally damaged while in Son’s possession.  Son had said that one of the Surrogate employees he spoke with told him he had to proceed as if there was no will – under the intestacy laws.  

As I explained last week, because Dad had not intentionally destroyed it we could not say that he no longer intended it to be his last will so we could not represent to the Surrogate that he didn’t have one.  It was simply that part of the document was damaged to the point of being unreadable.  Son did, however, have a readable copy.

There was, however, another reason proceeding in the correct way mattered.  The outcomes would be different because Dad was married to his second wife at the time of his passing and his children were from a different marriage.  His will left everything to his children and nothing to his second wife, however, under intestacy laws his wife would stand to inherit a part of his estate.  Additionally, Son told me that to his knowledge there was no prenuptial agreement between them waiving a right to each other’s estate.

I explained that the second wife might be able to assert a right to a portion of his Dad’s estate under New Jersey’s elective share law but that would depend on how much she had in assets at the time of Dad’s death.  If she already had an amount equal to 1/3 of the value of his estate then she would not be entitled to anything. 

In the end, we determined that filing an action asking a judge to admit the copy of the will was the right path.  We submitted a certification from Son explaining the circumstances of the storage of and damage to the will and that at no time after Dad signed that will did he ever, to Son’s knowledge, sign a new one.  He also never indicated an intention to destroy the will.  We provided a copy of our papers to his wife who had an opportunity to object if she disagreed.

The court admitted the copy of the will, accepting Son’s explanation as to why the original could not be submitted.  Also, as it turned out, Wife died a few weeks after the judge approved our application.  While we do not know if she would have had a right to a part of Dad’s estate it didn’t matter because she did not assert any claim before she died so any right she may have had was extinguished.