At issue is a motion by the widow Bernice McKay for an order allowing the filing of a widow's election against the will of decedent Louis McKay out of time of the six-month period enumerated in N.J.S.A. 3A: 38A-5(a). The motion denied for the following reasons:
The facts are undisputed. Louis McKay died on March 10, 1981, a resident of Atlantic County, New Jersey. On or about April 7, 1981 attorney Hayes qualified as executor of decedent's will. On April 14, 1981 Hayes sent each of the beneficiaries a copy of the will and notice of probate. As the certification of executor Hayes indicates, decedent's estate consists almost entirely of royalty interests in various musical compositions written or recorded by Billie Holiday, as well as a royalty interest in a book written by her. (Billie Holiday was married to McKay at the time of her death and her royalty interests passed to him as the sole heir.)
On May 12, 1981 attorney Etish wrote to executor Hayes and indicated that he was representing Bernice McKay, who sought advice whether to claim the widow's elective share or to take the 20% bequest of the residuary estate as provided by the will. The certification of Etish says the indication to elect was conditioned upon obtaining full disclosure from the executor as to exactly what the assets were. However, the May 12, 1981 letter to executor Hayes merely stated: "At this point in time, Mrs.
McKay has indicated her intention to so proceed and I would question whether or not you would be in a position to provide me with an accounting of what you anticipate the estate consists of." The letter evinces no conditional language and only requests the executor's anticipation of what the estate comprises. On May 18, 1981 the executor wrote to Etish and provided a summary of the assets of the estate, but there was no value assigned to the assets because the records were not sufficient to permit Hayes to value the assets.
On July 2, 1981 Etish wrote to Hayes requesting if "any more complete information as to the evaluation of the estate" could be made so as to enable Etish to advise widow McKay whether to take the elective share. To this request executor Hayes responded by letter to Etish on July 8, 1981. This letter listed all the cash assets of the estate and indicated that nine companies would probably pay future royalties that were incapable of being valued as of the date of that letter. That letter also indicated that Hayes would try to provide more information as to the royalties for the three years prior to the death of decedent within the upcoming month (August 1981). Executor Hayes kept his word by letter of August 24, 1981, which listed a breakdown of the valued royalty assets for the prior three years (1978-1980). At the end of the letter the executor stated: "To the best of my current knowledge the above constitutes all assets of Mr. McKay's estate. If you have any questions, please let me know."
On September 2, 1981 Etish wrote to Hayes concerning the July 8, 1981 letter, requesting more information as to the royalties. Apparently at the time of the writing of this letter Etish had not yet received the August 24, 1981 letter mentioned above. On September 8, 1981, Hayes wrote back to Etish indicating the crossing of the letters (August 24, 1981 and September 2, 1981) in the mail. Also in the September 8, 1981 letter Hayes indicated, "To the extent that statements are missing, they have been requested and I hope to have all information shortly. . . If you did not receive detailed royalty
information [contained in the August 24, 1981 letter], please let me know as soon as possible." Hayes also indicated a method of valuation of the royalty interests for inheritance tax purposes and noted that if there were any questions concerning this valuation, Etish should contact Hayes. There was no further correspondence between Etish and Hayes.
The time period during which a surviving spouse may elect against a will is specified in N.J.S.A. 3A:38A-5(a), which states:
a. The surviving spouse may elect to take his elective share in the augmented estate by filing in the Superior Court in the county in which the personal representative was appointed a complaint in an action applying for the elective share, within 6 months after the appointment of a personal representative. Before the time for election has expired, the court may for good cause shown by the surviving spouse extend the time for election upon notice to persons interested in the estate and to distributees and recipients of ...