On appeal from the Superior Court, Law and Chancery Divisions, Probate Parts, Essex County.
Approved for Publication August 31, 1995
Before Judges Gaulkin, Baime and Kestin. The opinion of the court was delivered by Kestin, J.A.D.
The opinion of the court was delivered by: Kestin
The opinion of the court was delivered by KESTIN, J.A.D.
The issues raised in this case bear upon the interests of those affected by a written contract to make reciprocal wills, specifically the restraints upon the freedom of action of a party in using or disposing of assets during his life as a survivor, and the enforceable expectations of irrevocable beneficiaries who are residuary legatees. These are questions of first impression, although touched upon in earlier cases involving oral testamentary contracts.
In January 1973, Max Resnick and Ada Heller were married. Max *fn1 was about 63 years of age and Ada was about 57. Each had been married before. Max had two adult children, Jerome and Charles. Ada had three adult children, Paul, Jean and Robert. Paul is the plaintiff executor herein.
Ten years after their marriage, on February 3, 1983, Max and Ada agreed, in writing, to make irrevocable reciprocal wills. N.J.S.A. 3B:1-4. Except for purely formal matter, the contract, in its entirety, provided:
WHEREAS, the Husband and Wife have been married since January 18, 1973; and
WHEREAS, the parties have combined the assets they each brought the marriage; and
WHEREAS, the parties have agreed to execute Wills in the forms annexed hereto and made a part hereof, designated Exhibits "A" and "B"; and
WHEREAS, each party has agreed not to alter or revoke any of the provisions of his or her Will without the written consent of the other; and
WHEREAS, the parties have agreed not to exclude the children of the other party by executing a new Will upon the death of either the Husband or Wife,
NOW, THEREFORE, for and in consideration of the sum of ONE (1.00) DOLLAR and other good and valuable consideration, it is agreed as follows:
1. The Husband shall execute a Will in the form annexed hereto and marked Exhibit "A".
2. The Wife shall execute a Will in the form annexed hereto and marked Exhibit "B".
3. After the due execution of their respective Wills in the forms of Exhibits "A" and "B", neither the Husband nor the Wife shall alter or revoke any of the provisions of his or her respective Will without first ...