On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County.
Approved for Publication January 30, 1997.
Before Judges Pressler, Stern and Wecker. The opinion of the court was delivered by Wecker, J. S.c. (temporarily assigned).
The opinion of the court was delivered by: Wecker
The opinion of the court was delivered by
WECKER, J.S.C. (temporarily assigned).
This is an appeal and cross-appeal from a Chancery Division judgment resolving a dispute between children of Katey Lagreca regarding the Disposition of her residuary estate and the appointment of an executor. The issues raised by this appeal are whether decedent's execution of a codicil to her will revokes the inconsistent provisions of the prior will and if so, whether her destruction of the codicil revives the original will provisions. The Chancery Division Judge concluded that the execution of the codicil revoked the inconsistent will provisions, and those provisions were not revived by the destruction of the codicil because the decedent did not observe the formalities required by N.J.S.A. 3B:3-15. We affirm substantially for the reasons set forth in Judge O'Halloran's well-reasoned oral opinion.
These facts are undisputed. Katey Lagreca, the widowed mother of John, Anthony and Diane, executed a valid will on July 14, 1982, naming her son John as sole executor. She provided several nominal, specific bequests to her two other children, Anthony and Diane, and to several grandchildren. Katey left the entire residuary estate to John. On May 5, 1987 Katey executed a valid codicil naming Diane as sole executor and devising her residuary estate to John, Anthony and Diane in equal shares. Katey Lagreca died on September 18, 1987.
On January 11, 1988 John submitted the 1982 will for probate, and letters testamentary were issued to him. On June 11, 1993 Diane filed a verified complaint seeking probate of a copy of her mother's 1987 codicil, the discharge of John as executor and her own appointment in that capacity. After a four-day trial, Judge O'Halloran rendered an oral decision expressing doubt about the credibility of each of the parties, but finding that the decedent was competent to execute both the will and the codicil, that she destroyed the original codicil with the intention of revoking its provisions, and that she neither re-executed the original will nor executed a new codicil expressing an intent to revive the earlier provisions. The Judge therefore ordered the residuary estate to be distributed equally among the three children of Katey Lagreca, in accordance with the intestacy statute, N.J.S.A. 3B:5-4. The judgment discharged John as executor and permitted any of the three children to apply for appointment as administrator pursuant to N.J.S.A. 3B:10-2.
Since the trial Judge had the opportunity to weigh the credibility of all the evidence, Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965), his clearly expressed findings of fact are entitled to deference. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974). There is sufficient credible evidence in the record to support those findings.
The trial Judge concluded as follows with respect to the legal issues raised by this appeal:
I conclude that at the time decedent executed her codicil she revoked the inconsistent paragraphs 9 and 12 of her Will. Those paragraphs in the Will left the residuary estate to defendant John and nominated him executor, whereas the codicil left the residue to the 3 children equally and named plaintiff Diane executrix. Revocation was contemporaneous at the time of execution of the codicil. It did not await the time of decedent's death.
When decedent later revoked the codicil did paragraphs 9 and 12 of the Will revive?
I find that under statutory and case law the answer to this question must be no. The statute is clear. 3B:3-15 says that a revoked Will shall not be revived except by re-execution or by a duly executed codicil expressing an intent to revive it. I understand the logic of defendant John's argument that since decedent revoked the codicil and kept the Will she must have intended that the old plan go into effect with the residue to him otherwise revocation of the codicil which left the residue to the 3 children would have been for naught since the effect of revocation without revival of the Will is to leave the residue to the 3 children by intestacy. But in the area of Wills, the Court must scrupulously follow statutory law which was enacted to prevent fraud and decedent simply did not re-execute her Will or execute a codicil to ...