Will of Reilly, Matter of

• Decision Date: 30 April 1985
• Citation: 493 A.2d 32,201 N.J.Super. 306
• Parties: In the Matter of the Probate of the Alleged WILL OF Bernard J. REILLY, Deceased.
• Court: New Jersey Superior Court — Appellate Division

Page 306

201 N.J.Super. 306

493 A.2d 32

In the Matter of the Probate of the Alleged WILL OF Bernard

J. REILLY, Deceased.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 12, 1984.

Decided April 30, 1985.

John L. Bonello, Oakhurst, for appellant Eileen Budnik (Anschelewitz, Barr, Ansell & Bonello, Oakhurst, attorneys).

Michael B. Kirschner, Wall, for respondents Kathleen A. Gilligan, Joan D. Amend, Jean A. McCabe and David Oakes (Magee, Kirschner & Graham, Wall, attorneys).

Before Judges FRITZ, GAULKIN and LONG.

The opinion of the court was delivered by

LONG, J.A.D.

On this appeal we have been asked to construe N.J.S.A. 3B:3-14, the statute which directs that the dissolution of a marriage shall revoke testamentary dispositions made to a "former spouse."

The case arose out of the following facts which are basically uncontroverted. On July 9, 1976, Bernard J. Reilly executed a will which left his entire estate to Eileen Budnik described in the will as "my fiancee", and appointed her his executrix. The following day he married her. The marriage foundered, and on March 23, 1978 a judgment was entered annulling the marriage and incorporating an interspousal agreement pursuant to which each party released all claims to the property of the other. Reilly died on October 19, 1983 without having formally revoked or altered his will.

Thereafter, the will was offered for probate. On November 2, 1983, Kathleen A. Gilligan, Jean A. McCabe, Joan Amend and David Oakes, nieces and nephew of Reilly, filed a caveat claiming that the will was revoked by operation of law under N.J.S.A. 3B:3-14 when the marriage was annulled. The trial judge signed an order directing the nieces and nephew to show cause why the will should not be admitted to probate and issuing letters testamentary. Budnik was appointed temporary administrator. On the return date, she argued that N.J.S.A. 3B:3-14 does not apply to this case because the will was executed prior to the marriage and because the marriage and dissolution predated the enactment of the statute. Alternatively she urged that even if the statute is applicable it does no more than create a presumption of revocation refutable by proof of intent to the contrary. In support of this position she filed a certification containing facts which would support the view that Reilly intended her to continue as his beneficiary under the will.

In rejecting these contentions, Judge Selikoff held that N.J.S.A. 3B:3-14 was applicable and that evidence of intent to the contrary is rendered irrelevant by the statute. This appeal ensued. We are satisfied that Judge Selikoff's conclusions were correct, that the facts presented here are squarely encompassed by the act and that the will was properly denied probate. Thus we affirm.

N.J.S.A. 3B:3-14 provides:

If after having executed a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any dispositions or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. A judgment from bed and board is a divorce for the purpose of this section. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse or by the revocation or suspension of a judgment of divorce from bed and board. No change of circumstances other than as described in this section revokes a will.

This section replicates Section 2-508 of the Uniform Probate Code (8 U.L.A. § 2-508, (1983)) in all significant details and is an example of the broader subject in the law of wills known as "revocation by operation of law." The gist of this statute is to incorporate into law the presumed intent of a testator that any disposition in a will benefitting a spouse should be terminated in the event of the dissolution of their marriage. In Matter of Estate of Bloomer, 620 S.W.2d. 365 (Mo.Sup.Ct.1981) the Supreme Court of Missouri, interpreting that state's enactment of Section 2-508 of the Uniform Probate Code, described its effect in terms equally applicable here:

The legislature decided that a divorce should wipe the slate clean as to the divorced spouse, without the testator having to go to the time and expense of making a new will. We can be sure that in almost every instance a divorced person does not desire a bequest to the former spouse to remain in effect. The legislature realized this, too, and wrote the statute to accomplish what was perceived to be the desired outcome in most divorces.

The adoption of N.J.S.A. 3B:3-14 in 1977 created a dramatic exception to the long standing policy of this state against implied revocation of wills. In re Garver, 135 N.J.Super. 578, 580, 343 A.2d 817 (App.Div.1975); In re Schneider, 159 N.J.Super. 202, 204-206, 387 A.2d 416 (Cty.Ct.1978); Murphy v. Markis, 98 N.J.Eq. 153, 130 A. 840 (Ch.1925), aff'd o.b. 99 N.J.Eq. 888, 132 A. 923 (E. & A.1926). In accordance with that policy, the prior statutory scheme provided that a will could be revoked only by "burning, cancelling, tearing or obliterating, execution of a new will or codicil, or by written revocation executed in the same manner as required for a will." N.J.S.A. 3A:3-3. Dissolution of a marriage did not revoke provisions in favor of a former spouse. In re Garver, 135 N.J.Super. at 580, 343 A.2d 817. After dissolution, the testator had an affirmative burden in order to effect such revocation. Murphy v. Markis, supra. That burden was shifted by N.J.S.A. 3B:3-14. Now revocation occurs as a matter of law upon dissolution of the marriage and the burden devolves upon the testator to effect revival in one of the prescribed modes: by remarriage to the former spouse, invalidation of the judgment of divorce, re-execution of the will or execution of a codicil. N.J.S.A. 3B:3-14, 15. Here Budnik's marriage to Reilly was dissolved. He never undertook any of the acts prescribed by N.J.S.A. 3B:3-14 or 15 to effect revival. Under our reading of the statute, the devise to Budnik was therefore revoked by operation of law.

In opposing this conclusion, Budnik first claims that because the execution of the will and the annulment of the marriage predated the effective date of the statute it should not apply. On its face, N.J.S.A. 3B:1-8, a general provision in the new probate law, compels an opposite conclusion. That statute mandates the applicability of the provisions of Title 3B to the "wills of all decedents dying on or after September 1, 1978." The date of Bernard Reiley's death falls well within this qualifying language, and it is that date which triggers the operation of the statute here. Budnik misconceives the death trigger as having the effect of a retroactive application of the statute. This argument overlooks the established rule that a will ordinarily is ambulatory and speaks only as of the death of the testator. In re Fernandez, 173 N.J.Super. 240, 413 A.2d 998 (Law Div.1980); Bartel v. Clarenbach, 114 N.J.Super. 79, 85, 274 A.2d 841 (Ch.Div.1971); Varick v. Smith, 69 N.J.Eq. 505, 512, 61 A. 151 (Ch.1905). The good sense of such a rule was explained by the court in In re Fernandez where a similar retroactivity argument was made with respect to another aspect of the new probate code:

The logic of principle that a will speaks as of the death ... points strongly towards holding that the new statute which diminishes the requirements for will execution is controlling. Even more persuasive is the fact that N.J.S.A. 3A:2A-1 et seq. is a comprehensive revision of New Jersey probate law designed to simplify and facilitate the making of wills and administration of estates. Were there to be a holding that its execution provisions applied only to wills made after the effective date of the statute, the benefits of the new law would be denied to all those who executed wills before September 1, 1978. It is not conceivable that the Legislature had any such intention. Cases such as those cited above, which take the view that a subsequent statute has no retrospective application, do so on the theory that vested interests are created by the will. In my view this is completely inconsistent with the settled law in this State that a will is ambulatory. It would be anomalous to follow such precedents in this State. [173 N.J.Super. at 248, 413 A.2d 998.]

Although the issue of retroactivity in the case of revocation by operation of law has not previously...