Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Probate of

Decided: April 30, 1985.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF BERNARD J. REILLY, DECEASED


On appeal from the Superior Court, Chancery Division, Probate Part, Monmouth County.

Fritz, Gaulkin and Long. The opinion of the court was delivered by Long, J.A.D.

Long

On this appeal we have been asked to construe N.J.S.A. 3B:3-14, the statute which directs that the dissolution of a marriage shall revoke testamentary dispositions made to a "former spouse."

The case arose out of the following facts which are basically uncontroverted. On July 9, 1976, Bernard J. Reilly executed a will which left his entire estate to Eileen Budnik described in the will as "my fiancee", and appointed her his executrix. The following day he married her. The marriage foundered, and on March 23, 1978 a judgment was entered annulling the marriage and incorporating an interspousal agreement pursuant to which each party released all claims to the property of the other.

Reilly died on October 19, 1983 without having formally revoked or altered his will.

Thereafter, the will was offered for probate. On November 2, 1983, Kathleen A. Gilligan, Jean A. McCabe, Joan Amend and David Oakes, nieces and nephew of Reilly, filed a caveat claiming that the will was revoked by operation of law under N.J.S.A. 3B:3-14 when the marriage was annulled. The trial judge signed an order directing the nieces and nephew to show cause why the will should not be admitted to probate and issuing letters testamentary. Budnik was appointed temporary administrator. On the return date, she argued that N.J.S.A. 3B:3-14 does not apply to this case because the will was executed prior to the marriage and because the marriage and dissolution predated the enactment of the statute. Alternatively she urged that even if the statute is applicable it does no more than create a presumption of revocation refutable by proof of intent to the contrary. In support of this position she filed a certification containing facts which would support the view that Reilly intended her to continue as his beneficiary under the will.

In rejecting these contentions, Judge Selikoff held that N.J.S.A. 3B:3-14 was applicable and that evidence of intent to the contrary is rendered irrelevant by the statute. This appeal ensued. We are satisfied that Judge Selikoff's conclusions were correct, that the facts presented here are squarely encompassed by the act and that the will was properly denied probate. Thus we affirm.

N.J.S.A. 3B:3-14 provides:

If after having executed a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any dispositions or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the

decedent. A judgment from bed and board is a divorce for the purpose of this section. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse or by the revocation or suspension of a judgment of divorce from bed and board. No change of circumstances other than as described in this section revokes a will.

This section replicates Section 2-508 of the Uniform Probate Code (8 U.L.A. ยง 2-508, (1983)) in all significant details and is an example of the broader subject in the law of wills known as "revocation by operation of law." The gist of this statute is to incorporate into law the presumed intent of a testator that any disposition in a will benefitting a spouse should be terminated in the event of the dissolution of their marriage. In Matter of Estate of Bloomer, 620 S.W. 2d 365 (Mo.Sup.Ct.1981) the Supreme Court of Missouri, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.