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In re Probate of Schnieder

April 28, 1978

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF PATRICIA J. SCHNEIDER, DECEASED


Longhi, J.c.c.

Longhi

In 1962 decedent Patricia Schneider, while a resident of New Jersey, executed a will leaving all of her estate to her husband Norman Schneider, remainder to their children. Two children were born of the marriage, a daughter now deceased and a son, Kevin Schneider, now age 20. In 1970 Patricia and Norman Schneider were divorced in New Jersey. The divorce judgment itself makes no provision for equitable distribution. However, it is uncontroverted that the parties did in fact make an equal distribution of all of their assets. Subsequent to the divorce decedent married Jerome Leviten and was married to him at the time of her death in March 1975.

Upon her death Jerome Leviten applied for and was granted letters of administration upon his allegation that decedent died intestate. Thereafter Norman Schneider produced and offered for probate the will that decedent had

executed in 1962. Jerome Leviten filed a caveat asserting that Patricia Schneider's divorce from Norman, coupled with a property settlement and her subsequent remarriage, operated to revoke her 1962 will by implication. Norman Schneider has assigned his rights under the will to Kevin Schneider, the sole surviving issue of the marriage between him and Patricia Schneider.

The sole issue to be decided is whether divorce of a testatrix, accompanied by a property settlement and subsequent remarriage, revokes a will made eight years prior to the divorce which left testatrix' entire estate to her then husband.

The proofs at the trial clearly establish that the will was properly executed and that decedent never revoked the will or executed another will or codicil.

The caveator concedes that under the existing statute, N.J.S.A. 3A:3-3, and the case law that had developed thereunder prior to 1960, a divorce coupled with a property settlement did not revoke an otherwise validly executed will. He urges, however, that other jurisdictions recognize the revocation under such circumstances, either by statute or by judicial interpretation. He further asserts that more recent New Jersey cases appear to indicate that the rigidity of the rule against implied revocation of wills where there is a divorce and property settlement is diminishing, depending on the circumstances presented in an individual case. Further, he states that by the enactment of L. 1977, c. 412, effective July 1979, the New Jersey Legislature has evidenced an intent to incorporate into the law the current judicial view on the subject.

While it is true that some jurisdictions recognize that a will can be revoked by reason of a divorce, property settlement and subsequent change in circumstances -- see Page on Wills (3 ed. 1960), § 21.101 at 523; 71 A.L.R. 3d 1297 (1976); § 2-508 -- that is not the law in our State. Murphy v. Markis , 98 N.J. Eq. 153 (Ch. Div. 1925), aff'd 99 N.J. Eq. 888 (E. & A. 1925); In re D'Agostino's Will ,

9 N.J. Super. 230 (App. Div. 1950); In re Santelli , 28 N.J. 331 (1958). Under present New Jersey law a testator, in order to revoke a will, must utilize one of the methods stated in N.J.S.A. 3A:3-3. The caveator urges that Sheldon v. Sheldon , 66 N.J. Super. 590 (Ch. Div. 1961), and In re Garver , 135 N.J. Super. 578 (Ch. Div. 1975), evidence a changing judicial view. However, those cases do not abrogate the rule that "a will * * * properly executed * * * may not be revoked except in the manner provided by statute and the burden of establishing the revocation is on the person asserting it." In re D'Agostino's Will, supra , 9 N.J. Super. at 232.

In Sheldon the testator, while married, executed a will which, among other provisions, left to his then wife one-half of the net proceeds from the sale of specified realty. The remaining half was left to a child. The parties were subsequently divorced and as part of that proceeding testator purchased the former spouse's interest in the realty and received back a quitclaim deed and also a general release of all claims against the husband and his heirs. The court did not set aside the will but revoked by implication the specific testamentary devise to the former spouse. The court reasoned that the actions taken by the parties in the divorce matter clearly evidenced an intent by them to cut off the wife's interest in the realty and that to permit that portion of the will to stand would have the result of giving her more than one-half of the realty, to the detriment of the surviving child. The case clearly turned on its specific factual pattern and has no application to the case at bar.

In Garver the court set aside a will that made a testamentary disposition of assets to a former spouse. In that case the marriage, execution of the will and subsequent divorce all took place in Tennessee. That state by statute provides for the revocation of a will making a disposition of property to a former spouse where there has been a ...


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