A Will’s A Will But A Deal’s A Deal

Jean M. O’Mealia died on April 21, 2014. She was predeceased by her husband, William Francis Xavier O’Mealia (“Francis”), who died on July 13, 2001. The couple had been married for thirty (30) years. It was the second marriage for both. They had no children together. Each had children from a prior marriage.

Upon her death, Jean’s Last Will and Testament of October 4, 2007 was admitted to probate.  In relevant part, it distributed her entire estate to her children.  This included the marital home which she shared with her husband.

Francis’ family filed a contest to claim one-half of the marital residence for Francis’ children and grandchildren.  Although the house was owned entirely by Jean, and Jean’s Will directed the disposition of her estate, Francis’ family argued that there was a contract to provide for their side of the family upon Jean’s death which superseded the terms of the Will.  The Court agreed.

In 1999, Francis transferred his interest in the marital home to Jean shortly before he filed for bankruptcy protection.   A Will was executed by Jean at that time although no original or copy would be found after Jean’s death.  In 2000, Jean executed a Codicil to that which stated that she would leave one-half of the marital home to Francis’ family if Francis predeceased her.  In doing so, she stated that she would not revoke her Will.  She contemporaneously executed a document known as an Affidavit and Agreement confirming same.

Pursuant to N.J.S.A. 3B:1-4, “A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, 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.”    In this case, the first two possibilities were not established as the 1999 Will could not be found and the 2000 Codicil did not refer to a contract.

Francis’ family asserted that the Affidavit and Agreement satisfied the third possibility as it was evidence of the contract in question.  Jean’s family argued that this document did not establish a contract because it was not executed by Francis.  However, the Court found that the there is no requirement that the agreement be signed by both parties.  It cited N.J.S.A. 3B:1-4(3) which only mentions that the writing be signed by the Decedent.  In addition, the Court noted that Francis was aware of the agreement as testimony established that he provided a copy of the Codicil to his family.  It is clear that the Court inferred that an agreement existed as Francis had conveyed his interest in the marital home at the time the 1999 Will was executed.

In all, this case is significant in that it shows a Court willing to view extrinsic evidence as elements of a contract that could supersede a Will.  Although a Will normally provides for the disposition of an individual’s probate assets, it is clear that a Will is nevertheless subject to the terms of a valid contract.  Thus, proper estate planning must address not only the desires of a testator but any obligations by which he or she is subject.

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