This action is before the court for a determination of the right of plaintiff to an intestate share of decedent's estate under the provisions of N.J.S.A. 3A:2A-44(a) and N.J.S.A. 3A:2A-34(a).
The facts are not in dispute. Plaintiff and Geoffrey Eyre were married on October 27, 1977. Eyre died on June 10, 1979, leaving a will dated June 1, 1976. The will was admitted to probate on September 24, 1979 and defendant Bloomfield Savings Bank was appointed executor thereunder. The will, made prior to decedent's marriage, fails to make any provision for plaintiff as surviving spouse. Decedent also executed an inter vivos trust agreement with Bloomfield Savings Bank on January 15, 1969 which provided that the trust assets were to be paid to the executor of decedent's estate for distribution under his will. Plaintiff filed a complaint on July 28, 1978 seeking a judgment declaring Geoffrey Eyre incompetent. A judgment of incompetency was entered on October 25, 1978 and plaintiff was appointed guardian.
After Geoffrey Eyre's death plaintiff instituted this suit to set aside his will under N.J.S.A. 3A:2A-44(a) because it failed to make any provision for her as surviving spouse. There was no evidence submitted that this omission had been intentional or that assets had been transferred to plaintiff outside the will.
The issues raised here make it necessary to construe the new Wills Act, specifically N.J.S.A. 3A:2A-44(a), which became effective
September 1, 1978, and the amendment to that portion of the act, section (c), effective October 11, 1979.*fn1
N.J.S.A. 3A:2A-44(a) provides in pertinent part:
If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will.
On motion for summary judgment defendant contended that plaintiff failed to state a cause of action under R. 4:6-2(e) because N.J.S.A. 3A:2A-44, as amended by the addition of section (c), applies "only to wills executed on or after September 1, 1978." Defendant argued that the Wills Act did not invalidate the 1976 will.
Plaintiff asserted that the amendment to N.J.S.A. 3A:2A-44(a) which added section (c) became law on October 11, 1979 and should not be given retroactive application unless the Legislature had manifested such an intention in clear terms. Thus, plaintiff maintained that the Wills Act, N.J.S.A. 3A:2A-44(a), which became effective September 1, 1978, granted rights to plaintiff which were in effect when Geoffrey Eyre died and when the complaint was filed on October 4, 1979. Plaintiff relied on cases holding that legislation will not be given retroactive application when it serves to divest vested rights. In re Grossman Tenure Hearing , 127 N.J. Super. 13 (App.Div.1974); Wayne Tp. v. Ricmin, Inc. , 124 N.J. Super. 509 (App.Div.1973); Sagarese v. Morristown Bd. of Health , 31 N.J. Super. 526 (Law Div.1954).
New Jersey courts are reluctant to apply statutes retroactively. State v. Exxon Corp. , 151 N.J. Super. 464 (Ch.Div.1977). Section (c), which ...