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Arlene Den Hollander v. Jacob Den Hollander

June 19, 2012


On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3174-09.

Per curiam.


Submitted May 7, 2012 -

Before Judges Grall and Skillman.

The Estate of Jon den Hollander, through its executors, appeals from an order entered on partial summary judgment in an action for declaratory and injunctive relief and damages filed by the decedent's wife, plaintiff Arlene den Hollander. Since the grant of partial summary judgment in favor of Arlene, all other issues between the parties have been resolved.

The question presented on appeal is narrow - whether the court erred in invalidating Jon's last will and testament on the ground that it was executed in violation of a consent order prohibiting Jon and Arlene from dissipating marital assets. We conclude that the last will and testament cannot be invalidated on that basis and consequently remand for further proceedings. Our reversal does not affect the court's determination on ownership of the real estate held by Jon and Arlene as tenants in the entirety prior to Jon's death, which now belongs to Arlene, or the money judgments the court awarded for the defendants' use and occupancy of that real estate.

Jon died in May 2009. Prior to his death, Jon was the only member of a business, Hollander Greenhouses, L.L.C., which he operated on property he and Arlene owned as tenants in the entirety. The equipment used in that business was also housed on that property.

Jon and Arlene had been separated for about two years when he died. After separating, they reached a temporary agreement that was memorialized in a consent order resolving a domestic violence action commenced by Arlene in Spring 2007. The consent order gave Jon temporary possession of the marital residence and addressed custody and support for their children and Arlene. Most pertinent here, the consent order provides: "Neither party shall dissipate any marital assets." They further specified that the parties' agreement "was made without prejudice to any claims he or she may have in any future family matters between the parties for equitable distribution or other relief."

The consent order was still in effect when Jon executed his last will and testament on November 14, 2008. In that document, Jon acknowledges his marriage, separation and three children and states his intent to "make no provision . . . for [his] children" and to "disinherit [his] current wife Arlene to the greatest extent possible under the law." In that document, Jon directed payment of specified expenses and estate taxes from his estate. He further directed, "the rest, residue and remainder of [his] property and estate, both real and personal, . . . that [he] own[s] or to which [he] shall be in any manner entitled at the time of [his] death" be held in trust for his mother and sister. He designated two of his brothers, defendants David and Roy den Hollander, as co-trustees under his will.

Following Jon's death, Arlene commenced litigation seeking to have Jon's brother Jacob ejected; he had been living with Jon in the marital residence since the couple's separation and remained there. She also sought damages for his use and occupancy of the premises after Jon's death.

Most pertinent to the issue raised on this appeal, Arlene sought a declaration invalidating provisions of Jon's will and testament bequeathing "any marital assets" to a trust for the benefit of his mother and sister on the ground that they violated the consent order's prohibition against dissipation of marital assets. She also sought a declaration that she was the sole owner of the business, its equipment and "loophouses." She relied on the provision of the consent order precluding dissipation of marital assets, and the trial court accepted that argument.

Our disagreement with the trial court is with its legal interpretation of the relevance of a prohibition against the dissipation of marital assets to the validity of Jon's last will and testament. Review of that legal determination is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). A consent order, like any agreement, must be interpreted in accordance with the reasonable meaning of its terms in their context to discern the intent of the parties. See Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (taking this approach in the interpretation of a property settlement agreement).

An agreement to refrain from dissipation of marital assets without reference to testamentary dispositions by will cannot be understood as an agreement to die intestate or to include specific bequests in a will. In the first place, it lacks the requisite specificity. See N.J.S.A. 3B:1-4 (providing that such a contract "can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract").

Furthermore, nothing in the nature of orders precluding dissipation of marital assets suggests that they cover testamentary dispositions. In the context of marital assets, dissipation is generally understood to encompass one spouse's diversion of assets acquired during the marriage in contemplation of divorce and with the goal of depriving the other spouse of his or her equitable share. Kay v. Kay, 405 N.J. Super. 278, 286 (App. Div. 2009), aff'd, 200 N.J. 551 (2010). Thus, ...

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