Presumption of Revocation Found For Decedent’s Will Executed Before Marriage and Birth of Children
In re Estate of Kremer, 2024 WL 4964639 (N.J. Super. Dec. 4, 2024)
This case deals with revocation of wills and related points.
Bonnie Levine executed a will in 1992. The will named Bonnie’s sisters, Pamela McGinnis and Patrice Berman, as executrix and contingent executrix, respectively.
In 1997, Bonnie married Joseph Kremer. The couple had three children, who were born between 2003 and 2005.
However, Bonnie did not execute another will after 1992, and her 1992 will did not name her husband or their three children.
In 2014, Bonnie filed for divorce. After protracted divorce litigation lasting nearly ten years, Bonnie passed away on January 24, 2023. The Family Part dismissed her divorce complaint two days later.
After Bonnie’s death, the original of the 1992 will could not be located, so the litigation centered on whether it was revoked and the assets passed by intestacy.
In particular, Joseph Kremer sought to be appointed as administrator of Bonnie’s estate. Patrice Berman (one of Bonnie’s sisters) opposed that. In February 2023, plaintiff Joseph Kremer then filed a complaint and order to show cause seeking appointment as administrator. He named Bonnie’s sisters, Pamela McGinnis and Patrice Berman, as defendants. Co-defendant Patrice Berman answered and cross-claimed, seeking to probate the 1992 will and also seeking appointment as executor of Bonnie’s estate.
After a hearing in which the trial court considered the submissions of counsel, including certifications of five witnesses, the court found that the will had been revoked. First, the defendant did not overcome the presumption of revocation of the 1992 will by the decedent. Further, given that the will was executed in 1992 before the birth of her children and under her maiden name, the trial judge found that Bonnie had revoked the 1992 will under N.J.S.A. § 3B:3-13. After finding that Bonnie had revoked the will, the trial court ordered distribution of the estate pursuant to the intestacy statutes but did not resolve the appointment of the administrator.
Defendant Patrice Berman appealed, arguing that the trial judge erred in concluding the will was revoked and ignored evidence of the will’s existence.
As to the revocation of the 1992 will, the Appellate Division explained that:
[F]or the presumption of revocation to apply to a lost will, a testator must have had access to their will before their death, and the will cannot be found after their death. In re Davis’ Will, 127 N.J. Eq. at 57. A decedent’s possession, or opportunity for repossession, of a lost will at the time of their death is a prerequisite for the presumption of revocation to apply. In re Calef’s Will, 109 N.J. Eq. at 186 (“Our law . . . does not require an actual tracing of the will back into the possession of the testatrix, but is satisfied by a showing of access, that is, opportunity of repossession, and upon such showing the presumption of revocation remains until rebutted by evidence which is clear, convincing and satisfactory.”).
Id. at *3 (emphasis in original).
The appeals court agreed that the record showed that no other party besides the decedent had possession of the original will and further that the will was never found. Because the record showed that the decedent never gave up possession of the original will and that will could not be found, the trial court properly applied the presumption of revocation. The Appellate Division also agreed that, once the presumption of revocation applies, the proponent of the will must provide clear and convincing evidence to rebut the presumption. The defendant had not done so. For example, the defendant failed to show evidence that the decedent would have declined to update her will to include her own children.
Finally, the Appellate Division considered that the Family Part dismissed the decedent’s divorce complaint on January 24, 2023 and, on January 8, 2024, the legislature amended N.J.S.A. § 3B:5-3(d), such that plaintiff would have been precluded from taking any share of the decedent’s estate. Roik v. Roik, 477 N.J. Super. 556, 574 (App. Div. 2024). The issue thus arose as to whether the amended statute applied in this matter:
Had pipeline retroactivity applied, subsection (d) would have disqualified plaintiff from taking any share of decedent’s estate. Absent pipeline retroactivity, decedent’s estate will be distributed by operation of a now-defunct statute the Legislature recently modified to prevent the very outcome contemplated here. Such an outcome is a matter of “great public interest,” and warrants our consideration despite the issue not being raised below. Nieder, 62 N.J. at 235.
In re Estate of Kremer, 2024 WL 4964639, at *4.
The appeals court noted that the trial court did not provide findings of fact and conclusions of law to support the portion of its orders which directed that the estate be distributed pursuant to N.J.S.A. § 3B:5-3. Therefore, the matter was remanded for the trial court to supplement the record solely on the question of estate distributions and the applicability of that statute.