New Jersey Probate & Estate Litigation: Compelling Production of a Last Will & Testament

Any interested party may file an Order to Show Cause and Verified Complaint to compel production of a purported Last Will and Testament or information as to its existence of whereabouts. Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-29):

The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts of any paper purported to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the paper to be lodged with the surrogate of the county for probate.

Pursuant to the Rules Governing the Courts of the State of New Jersey, the Court may order any person possessing the Will, or who has knowledge of the Will’s existence or whereabouts, to appear before it and make discovery as to his or her possession or knowledge of the Will or, upon the return date of the Order to Show Cause, enter such Order and take such further proceedings as may be deemed appropriate under the circumstances.

Generally, an interested party must allege in the Verified Complaint that:

1. He or she believes that somebody has in his or her possession, or has knowledge of the existence of whereabouts of a paper writing purported to be the Will of the decedent;
2. That the Testator or Testatrix of the Will passed away a resident of the county where filed; and
3. That the individual has neglected or refused to file the Will with the Surrogate of the county.

Under New Jersey case law, the designated executor or executrix in possession of a Will has a duty to either probate the Will or renounce his or her office. It is also worth noting that certain improper conduct with respect to Wills may be a disorderly persons offense or a crime of the third degree in the State of New Jersey. Specifically, N.J.S.A. 2C:21-3 provides:

a. Fraudulent destruction, removal or concealment of recordable instruments. A person commits a crime of the third degree if, with purpose to deceive or injure anyone, he destroys, removes or conceals any will, deed, mortgage, security instrument or other writing for which the law provides public recording.
b. Offering a false instrument for filing. A person is guilty of a disorderly persons offense when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

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