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In re Probate of

Decided: May 9, 1985.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF GLADYS E. MARINUS, A/K/A GLADYS E. NADEAU, DECEASED


On appeal from Superior Court, Law Division, Probate Part, Ocean County.

Michels, Petrella and Baime. The opinion of the court was delivered by Petrella, J.A.D.

Petrella

Rene W. Nadeau, Jr. appeals from a determination of the Probate Part of Superior Court, Ocean County, holding that he was not entitled to take his deceased wife's estate as an omitted spouse under N.J.S.A. 3B:5-15, but was only entitled to take an elective share under N.J.S.A. 3B:8-1, et seq., because certain documents authored by decedent subsequent to her marriage to Nadeau republished decedent's will which had been executed prior to their becoming husband and wife.

For the reasons hereinafter stated we are satisfied that the holographic documents admitted to probate are ineffective as a matter of law to republish decedent's 1979 will. We conclude that the judge erred in admitting the three documents as codicils because they do not refer back to that will, and do not indicate any intent to republish it.

In order to understand the positions of the parties it is necessary to review the relevant factual setting. On August

25, 1979*fn1 Gladys E. Marinus had executed what became her Last Will and Testament. In that will she appointed the First National Bank of Toms River to be executor and trustee. Among other things, monetary bequests were made therein to certain individuals, some of whom are respondents herein: Nellie Brain ($5,000);*fn2 Mollie Pernot Egg ($5,000); Mabel Stone Perkins ($5,000); Kenneth and Louise Gunther ($15,000 and any grave sites in Cedar Lawn Cemetery, Paterson); Henry and Elsie Gideon (her home and the contents). The residue of her estate was to be held in trust, with the income therefrom to be paid to Kenneth and Louise Gunther or the survivor, during their lifetime. Upon the death of the survivor, the trust residue was to be distributed equally among the Cathedral of Tomorrow, also known as the Rev. Humbard Foundation, in Cayuga Falls, Ohio; The Hour of Power, in California; The Madison Avenue Baptist Church of the City of Paterson ("Madison Church"), and the North Shore Animal League of Long Island, New York (hereinafter collectively the "charitable beneficiaries").

Nadeau and Gladys E. Marinus met in April 1980. They were married on August 30, 1982 in a civil ceremony in Elkton, Maryland. The marriage certificate indicated that at the time of their marriage Nadeau was 21 years old and his bride, previously married to Vernon Marinus who died in 1965, was 75.

Although discovery had apparently never been completed in this matter, the depositions of Nadeau stated that on or about February 16 or 17, 1983 he had made an appointment on behalf of himself and his wife with an attorney to have wills made on February 22, 1983, the same day that Gladys was to see her

doctor. Gladys died on February 19, 1983. It is undisputed that decedent had made certain changes on a photocopy of her August 25, 1979 will in her own handwriting, although she did not sign anew any place except on a will backer kept with those pages.*fn3 Moreover, the changes indicated could not be understood without referring to the copies of the pages of the will. Those changes essentially indicated that her entire estate was to be given to Nadeau. The original 1979 will had apparently been retained by the attorney who drew the document.

Nadeau's attorney represented to the probate judge that decedent had kept folded together in an envelope*fn4 in a metal box not only the marked-up photocopy of her 1979 will, but also three other documents which are conceded by the parties to have been written in decedent's own handwriting. The first of the three documents bears both 1979 and 1983 dates and was written in green ink, with changes apparently made subsequently in blue ink. Across the top of the first document in green ink is the signature "Gladys Evelyn Marinus" above a line which reads " Instructions for my burial " (emphasis in original) along with the date "Dec 17, 1979":*fn5

Pay all just debts -- bury me in Grave No. [12] in Cedar Lawn Cemetery, Paterson, N.J. with headstone, as soon as feasible. If Louise Gunther is still living -- she will arrange hair -- dress -- flowers in hand in casket. Wig No VII in closet She is to have her choice of any jewelry of any kind left by me real or imitation, or clothes, including coats. There are two life insurance policies in

among my papers in tin boxes in bedroom closet on floor. Also are Savings & Loan account books, telling the amount of each. Also Cemetery deeds.

Signed,

Gladys E. Marinus

Jan. 25, 1983

The Arabic numeral "12" in the body of the writing is enclosed in a red square. On the obverse of this sheet is written in green ink: "Instructions for Burial."

The second document, written entirely in blue ink (except for the enclosure of the numeral "12" in red ink), and conceded to be in decedent's handwriting, reads:

Jan. 25-1983

Instructions for burial, etc for Gladys E. Marinus

Deed for cemetery plot located at Cedar Lawn Cemetery in Paterson, N.J., in gray metal box in closet. Also deed for 137 Westbrook Drive, Toms River, N.J.

Bury me in grave No. [12], between Margaret J. Ward and Vernon Marinus

Grave No. 12-Section 17-Lot 332. List of all money owned by me as indicated in books -- also in gray box in closet. Notify Ridgewood, N.J. News and Paterson N.J. News for death notice. Do not give age.

Funeral may be held at chapel, located at Cedar Lawn Cemetery in Paterson, N.J., if more ...


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