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Matter of Hand

Decided: May 19, 1967.

IN THE MATTER OF THE PROBATE OF THE LAST WILL AND TESTAMENT OF MORGAN HAND, II, DECEASED


Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Morgan Hand II died January 19, 1966 leaving a last will and testament dated December 23, 1964 which was admitted to probate January 31, 1966. The central issue of this appeal is whether Elisabeth J. Hand, his only child, has standing to contest the will. In it testator named his wife Mary G. Hand (herein plaintiff) as executrix and his daughter (herein defendant) as contingent executrix. He gave his daughter a specific legacy of $10,000 and directed that his residuary estate be paid to his wife, with a provision for payment thereof to the daughter in the event his wife should not survive him.

Defendant filed a complaint in the County Court, Probate Division, demanding that the judgment of probate be set aside and that plaintiff-executrix be required to re-offer the will for probate in solemn form. She claimed (1) the will was not executed in accordance with N.J.S. 3A:3-2 et seq.; (2) pursuant to a compact with plaintiff to make mutual, reciprocal and irrevocable wills, decedent had signed a prior will dated February 16, 1955 and plaintiff had made a similar will, and (3)

"* * * By the terms of said mutual and reciprocal wills, * * * [ Elisabeth J. Hand ] is the ultimate irrevocable beneficiary of either party taking under either of said mutual wills. The alleged last will and testament of said Morgan Hand II dated December 23, 1964, breaches said compact, and it is contended that said breach was neither intended nor understood to have been effectuated by Morgan Hand II, and that said breach resulted to the detriment of * * * Elisabeth J. Hand." (Emphasis supplied)

The matter was brought on for hearing before the trial court by an order to show cause, at which time the court considered the pleadings, the record before the surrogate, affidavits of plaintiff-executrix and defendant-caveator, and the arguments of counsel. Plaintiff moved to dismiss defendant's complaint, and defendant, by a cross-motion, sought to take depositions and to pursue discovery with respect to the validity of the 1964 will. The trial court found defendant was not an aggrieved person under R.R. 5:3-4(a) or an interested person under R.R. 5:3-4(b) and that she lacked standing to challenge the probate of the 1964 will.

It is undisputed that decedent's 1955 and 1964 wills contain the same plan of testamentary disposition, except that the earlier instrument did not include a specific legacy to Elisabeth; under each will testator's wife, if she survived, was designated sole residuary beneficiary.

Elisabeth's affidavit asserted that her parents executed identical, reciprocal wills under the terms of which she was "the ultimate and irrevocable beneficiary of either party taking under either will." Mary Hand deposed in her affidavit that, "At no time was there any type of a prior agreement, arrangement or understanding as to the disposition of our respective property upon our deaths except as each of us have provided in our wills."

Elisabeth premises her claim of standing to challenge the 1964 will on the following hypothesis: Her father's execution of the 1964 will was a breach of the 1955 agreement with his wife to make mutual wills; the breach of that agreement gives her mother the right to make any will she chooses and, thus, presents the possibility that she (Elisabeth) may not be the ultimate recipient of the estate now valued at approximately one-half million dollars. Elisabeth claims that the 1955 agreement gave her a vested interest which she must now move to protect because her mother refuses to challenge the 1964 will or to seek enforcement of the 1955 agreement.

The trial judge, in determining that defendant was not an aggrieved or interested person within the contemplation of

R.R. 5:3-4, declared in his oral opinion, "I see nothing in the record except affirmative admissions as to the validity of the 1955 will. The affidavit of the caveator in Paragraph III admits the validity of the 1955 will, and under the 1955 will she was nothing but a contingent beneficiary." Defense counsel directed the court's attention to the seventh paragraph of Elisabeth's affidavit which reads, "That [1955] will, too, could be held to be invalid," whereupon the trial judge stated:

"It is a legal argument. It is a suggestion that the will could be held invalid. Anything could be. Mere imaginary possibilities could arise, and that is about the degree to ...


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