Agreement to not change Will valid IN THE MATTER OF THE ESTATE OF JEAN M. O’MEALIA

Agreement to not change Will valid

IN THE MATTER OF THE ESTATE OF JEAN M. O’MEALIA 

SUPERIOR COURT OF NEW JERSEY 

CHANCERY DIVISION 

BERGEN COUNTY 

DOCKET No. BER-P-477-14 

CIVIL ACTION 

DECISION AFTER TRIAL 

Argued: February 23, 2016 

Decided: February 24, 2016 

Honorable Robert P. Contillo, P.J.Ch. 

 1 

 NOT TO BE PUBLISHED WITHOUT 

THE APPROVAL OF THE COMMITTEE ON OPINIONS 

This matter was tried by the court sitting without a jury on Tuesday, February 23, 2016. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

Decedent Jean M. O’Mealia (“Jean” or “Decedent”) 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. 

Jean’s Last Will and Testament of October 4, 2007 was admitted to probate on June 11, 2014 (J-7). Pursuant to the terms of that Will, Jean’s daughter Barbara A. Cooke received Letters Testamentary on June 11, 2014. 

Petitioner Francis X. O’Mealia (“Frank”) is the son of Francis by a prior marriage. Francis also had a daughter by his prior marriage, Patricia Opfer. Francis had two grandchildren by Patricia — Donna and Laurie. 2 

Jean had four (4) children by her prior marriage: Barbara A. Cooke, Kathleen Wirt, Patricia Besserer and Frank Lynch. 

At the time of her death, Jean owned a home at 214 Longview Avenue, Hasbrouck Heights, New Jersey, titled solely in her name. The property had been conveyed to Jean by William F. X. O’Mealia and Jean M. O’Mealia by deed dated January 20, 1999, recorded January 29, 1999 (J-1). Francis and Jean had acquired the property from a third-party by deed dated February 26, 1990, using the proceeds of sale of their home in Jersey City. 

Pursuant to the terms of her Will of October 4, 2007, Jean left 30% of her residuary estate to her daughter Barbara A. Cooke, 30% to her daughter Kathleen Wirt, 30% to her daughter Patricia Besserer, and 10% to her son Frank Lyndon. 

Jean had executed a prior Will, on April 29, 1999. Neither the original nor any copy has been found. The court received no evidence as to the content of that lost or destroyed instrument. We know it existed because it is referenced in a codicil signed by Jean on October 6, 2000 (J-4). 

In that Codicil, Jean granted her husband a life estate in premises now titled in her name, being the martial home at 214 Longview Avenue, Hasbrouck Heights, New Jersey, and provided that, upon his death, the property was to be sold and the net proceeds given as follows: (a) one-half to her four (4) children and (b) one-half to her husband’s two children and two grandchildren. The Codicil was prepared and notarized by attorney William R. Postman, Jr. On that same date, Jean executed an Affidavit and Agreement, also prepared by and notarized by Mr. Postman. It provides as follows: 

“1. I am the present owner of the premises commonly known as 214 Longview Avenue, Hasbrouck Heights, New Jersey. 

2. I agree, that, in the event my husband, William Francis X. O’Mealia shall predecease me, I will not change my Last Will and Testament to remove Patricia Opfer, Francis X. O’Mealia, Donna Wright and Laurie Patti, my husband’s children and grandchildren, as beneficiaries of one half of the net proceeds from the sale of the above premises.” 

On December 19, 2014, Francis X. O’Mealia (“Frank”), the son of William Francis Xavier O’Mealia (“Francis”), filed a Verified Complaint and Order to Show Cause seeking to set aside Jean M. O’Mealia’s Last Will and Testament of October 4, 2007, to remove Barbara A. Cooke as Executrix, and to have admitted to probate Jean’s lost or destroyed Will of August 29, 3 

1999 and the Codicil of October 6, 2000, based upon the Affidavit and Agreement Jean signed on October 6, 2000, agreeing to divide the net proceeds of the Hasbrouck Heights property 50/50 between (a) her children and (b) the children (and grandchildren) of her husband. 

On the return date of the Order to Show Cause the court (Hon. Peter E. Doyne, A.J.S.C., now retired), determined that the matter was contested. The parties engaged in discovery. Unable to resolve their differences, the matter came on for trial on February 23, 2016. Christopher Leyden, Esq. presented the case on behalf of Petitioner Francis (“Frank”) X. O’Mealia. Michael I. Lubin, Esq. presented the case on behalf of the Executrix Barbara A. Cooke. 

The court heard from the following trial witnesses: 

1. Patricia Opfer, daughter of Francis; 

2. Dorothy Enright, secretarial assistant to attorney William R. Postman, Jr.; 

3. Jarett Cooke, son of Executrix Barbara Cooke and grandson of decedent Jean M. O’Mealia. 

4. William R. Postman, Jr., Esq.; 

5. Ron Cooke, husband of Executrix Barbara Cooke. 

Several exhibits were received into evidence, all by stipulation. Following closing argument, the court reserved decision. 

II. DECISION OF THE COURT 

The within matter is governed by N.J.S.A. 3B:1-4, entitled “Contractual arrangements relating to death”, which provides in total as follows: 

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. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. 

It is the contention of Frank O’Mealia, son of Francis, that Francis and Jean O’Mealia entered into an enforceable contract whereby Jean agreed not to change her Last Will and Testament to remove Patricia Opfer, Frank, Donna Wright and Laurie Patti, being the children and grandchildren of Francis, as beneficiaries of one-half of the net proceeds from the eventual sale of the marital home in Hasbrouck Heights, New Jersey. 4 

Frank contends that this contract is memorialized in a certain October 6, 2000 “Affidavit and Agreement”, prepared and notarized by attorney Postman, and signed by Jean, in which Jean “agreed” to exactly that: 

“1. I am the present owner of the premises commonly known as 214 Longview Avenue, Hasbrouck Heights, New Jersey. 

2. I agree, that, in the event my husband, William Francis X. O’Mealia shall predecease me, I will not change my Last Will and Testament to remove Patricia Opfer, Francis X. O’Mealia, Donna Wright and Laurie Patti, my husband’s children and grandchildren, as beneficiaries of one half of the net proceeds from the sale of the above premises”. 

(J-3). 

That same day (October 6, 2000), Jean executed a codicil to her Will of April 29, 1999, which document was also prepared and notarized by attorney Postman, in which she amended Article II of that Will to provide as follows: 

ARTICLE II 

I direct that William Francis X. O’Mealia, my husband, may continue to reside in the house located at 214 Longview Avenue, Hasbrouck Heights, New Jersey 07604, for the remainder of his life, or until he is unable to reside there, or until he chooses to vacate the house, whichever event shall occur first. After he permanently vacates that house as stated above, or for any other reasons, I direct my Executor(s) to sell the house located at 214 Longview Avenue, Hasbrouck Heights, New Jersey 07604, at its fair market value. A purchaser of such property shall not be required to see to the application of the purchase money. After deducting from the sales price all appropriate commissions, taxes and expenses, I give one-half to the net proceeds from the sale of the house, to PATRICIA BESSERER, KATHLEEN WIRT, FRANCK LYNCH and BARBARA COOKE, my children, in equal shares. I give one half of the net proceeds from the sale of the house, to PATRICIA OPFER and FRANCIS O’MEALIA, my husband’s children, DONNA WRIGHT and LAURIE PATTI, my husband’s granddaughters, in equal shares. 

(J-4). 

The underlying Will to which this Codicil relates is dated April 29, 1999. The trial evidence establishes that it too was prepared by attorney Postman. No original or copy has been produced, and no evidence of the contents of that Will was produced. 

By deed dated January 20, 1999, recorded January 29, 1999, prepared by an attorney named Anthony H. Guerino, Esq., Francis and Jean conveyed to Jean all of Francis’ right title 5 

and interest to the jointly owned marital home in Hasbrouck Heights (J-1). The consideration as recited in that deed is “$1.00”. That deed was forwarded on to Francis by Mr. Guerino’s paralegal under cover of a letter dated April 23, 1999 (J-2). In that letter, Mr. Guerino’s paralegal also advises Francis that “… the Bankruptcy Petition was filed and we are awaiting a Court Date. I will contact you upon receipt of same”. 

The trial record reveals that Francis had incurred substantial credit card debt; that he consulted with attorney Guerino at Mr. Guerino’s Newark office; that Mr. Guerino prepared, notarized and recorded the deed by which Jean and Francis transferred all interest in the jointly-held marital property into Jean (J-1); and that Guerino filed a bankruptcy petition on behalf of Francis. The court has not been provided with the bankruptcy petition and received no evidence as to the resolution of that filing. 

It is noted that the April 23, 1999 cover letter to Guerino’s office to Francis predates by six (6) days the missing Will prepared by Postman dated April 29, 1999, referenced in the Codicil of October 6, 2000. 

The core question posed by the trial is whether Francis’ son Frank has proven the existence of an enforceable agreement by Jean not to change her testamentary provision which provides for the post-death division of the net proceeds of sale of the marital home 50/50 between her heirs and those of Francis. 

Since 1978, a contract to make a will or not to revoke a will or a devise, can only be established in one of three ways. N.J.S.A. 3B:1-4. The first of those ways is by “provision of a will stating material provisions of the contract”. The missing Will of April 29, 1999 has not been shown to have contained any reference to any contract between Francis and Jean. It is Petitioner’s burden to prove otherwise and that burden has not been met. The 2001 instrument which Jean may or may not have executed contains no reference to any such contract between Francis and Jean (J-6).1 The October 6, 2000 Codicil (J-4) to the missing Will of April 29, 1999 likewise contains no reference to any contract between Francis and Jean. It does embody the testamentary provision by Jean to divide the net proceeds of the marital home 50/50 between her heirs and those of Francis. However, reference to the existence of a contract between Francis and Jean in this regard (50/50) is not to be found in the Codicil. The fact that the provision said 

1 There is reason to believe that this 2001 unsigned Will is a draft as it was found only in scrivener Postman’s computer and has an error in the bequests, which total 110% rather than 100%. 6 

to be contractually-mandated is located in the Codicil (e.g., “I leave X to A and B, 50/50”) provides no basis for supposing that that provision is somehow mandated by a contract, as opposed to being entirely gratuitous, hence revocable. Said another way, the statute can not be read as providing that a bequest in a will is somehow in and of itself evidential of that bequest being mandated by contract, as opposed to being entirely gratuitous and revocable. 

The second of the only three ways by which to establish a contract to make a will or devise, or not to revoke a will or devise, is by “an express reference in a will to a contract and extrinsic evidence proving the terms of the contract”. Here, there is no express reference to a contract in any of the wills or in the codicil attributable to Jean O’Mealia.2 

2 The court has been provided no evidence as to any last will testament or codicil ever executed at any time by Francis O’Mealia. 

The third and final of the three ways by which to establish the existence of a contract to make a will or devise, or not to revoke a will or devise, is by “a writing signed by the decedent evidencing the contract”. Here, we have a writing signed by decedent — Jean — notarized by its preparer, her attorney, Postman, executed by Jean on the same day she executed a codicil embodying precisely what she agreed she would not thereafter change. Jean created a testamentary provision dividing the net proceeds of the home 50/50 between her heirs and those of Francis and, on the same date, signed a sworn statement, notarized by her attorney, agreeing not to revoke that 50/50 division. 

Therefore, I find there exists a writing, signed by the decedent — Jean — evidencing an agreement with Francis not to revoke the 50/50 provision in the event her terminally ill husband were to predecease her. Francis died on July 13, 2001, some nine (9) months after Jean signed the Codicil and the agreement not to revoke the terms embodied in the codicil. 

It is argued that Francis did not sign the “Affidavit and Agreement” and that there is no competent evidence he even entered into any such agreement or contract with Jean. 

The statute does not require that the contract or agreement be signed by Jean and Francis. It is sufficient that it is “signed by the decedent”, i.e., Jean. N.J.S.A. 3B:1-4(3). The attorney who prepared the agreement and the Codicil was Jean’s estate attorney, but he represented both Jean and Francis in connection with the sale of their Jersey City home and simultaneous purchase of their Hasbrouck Heights home in 1990. It was conceded at trial that Francis was aware of the Codicil and agreement, and trial testimony establishes that he gave a copy of each to 7 

his daughter the week before he died, telling her “Don’t lose it”. There is no logical reason to assume that Francis disagreed with Jean’s promise to protect Francis’ heirs in the very likely event he were to predecease her. The only logical conclusion is that Jean and Francis so agreed, and that Frank understood that his side of the family would get their fair, equal share of the net proceeds of the sale of the marital home. 

In summary, I find that there was an agreement between Jean and Francis that Jean would create a testamentary plan to provide for Francis’ family to get one-half of the net proceeds of the marital home when she died, should he have predeceased her and, further, Jean agreed that she would not change the plan to disinherit Francis’ family from this one-half interest. 

The statute does not require these proofs to be by clear and convincing evidence. The three (3) cases relied upon by Jean’s heirs all predate the statute and relate to claims of oral promises or oral contracts to make a will or make a specific bequest. 

The Executrix cites to Young v. Sabol 4 N.J. 309 (1950) for the proposition that Petitioner’s proofs must be clear and convincing. But Young involved a purported oral agreement to make irrevocable wills. The higher standard is deemed appropriate because of the opportunity for perpetration of fraud attendant to supposed oral agreements to make irrevocable wills. Vreeland v.Vreeland, 53 N.J.Eq. 387 (1895). Howells v. Martin, 101, N.J.Eq. 275 (E.&A.) 1927) is to the same effect, as is Sommers v. Zuck, 139 N.J.Eq. 245 (Ch. 1947). These precedents are of limited value where, as here, we are dealing with a subsequently enacted statute which specifies what must be shown to establish such an agreement, where the bequest is in writing and the agreement not to alter the bequest is also in writing, and where there is no hint of fraud or undue influence or any circumstance of even a suspicious nature. 

The legislative history of the statute under consideration gives insight into the difficulties the act was designed to remedy. The following is quoted in Matter of Estate of Cosman, 193 N.J.Super. 664, 670 (App. Div. 1984): 

“Although our search for legislative history developed no expression of legislative purpose, the statement accompanying the bill declares it to be “one of a series of bills adopted from the proposed Uniform Probate Code ….”. The section in question is a duplicate of section 2-701 of the Uniform Code. The comment to section 2-701 delineates the legislative intent: 

It is the purpose of this section to tighten the methods by which contracts concerning succession may be proved. Oral contracts not to revoke wills have given rise to much litigation in a number of states; and in many states 8 

if two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both. 

This section requires that either the will must set forth the material provisions of the contract, or the will must make express reference to the contract and extrinsic evidence prove the terms of the contract, or there must be a separate writing signed by the decedent evidencing the contract. Oral testimony regarding the contract is permitted if the will makes reference to the contract, but this provision of the statute is not intended to affect normal rules regarding admissibility of evidence. [8 U.L.A. 364 (1972)]. 

I find the agreement has been established in a manner statutorily sanctioned, by a preponderance of evidence. And, since there really is no other way to understand the Agreement and the Codicil, I find that Petitioner has established the existence of an agreement by Jean and Francis by which Jean would not alter the 50/50 testamentary disposition, by clear and convincing evidence, were that the standard. Here, we have an unambiguous written bequest and an unambiguous written confirmation by Jean that she would not revoke that bequest. That is sufficient to establish the existence of an agreement not to revoke a bequest per N.J.S.A. 3B:1-4(3). 

The remaining question is whether any consideration exists to support the agreement. A will is revocable at any time by the testator; a testamentary disposition is not enforceable until after the testator’s death. Michaels v. Donato, 4 N.J.Super. 570, 67 A.2d 911, 913 (Ch. Div. 1949). Moreover, a will may be altered unilaterally by the testator in an instrument executed in accordance with the statutory formalities for executing wills. N.J.S.A. 3B:3-16; see N.J.S.A. 3B:3-2. In contrast, a contract creates a present, enforceable, and binding right over which the promisor has no control without the consent of the promisee. Michaels v. Donato, 4 N.J.Super. 570, 67 A.2d 911, 913 (Ch. Div. 1949). The execution of the contract and the performance of the duties on the part of the promisee create an affirmative obligation on the testator to make a testamentary disposition in conformity with the terms of the contract. Tooker v. Vreeland, 92 N.J. Eq. 340, 112 A.655, 668 (Sup. Ct. 1921), aff’d, 93 N.J. Eq. 224, 115 A. 255 (1921). A violation of this obligation is a breach of contract and a fraud upon which equity may afford relief. Drewen v. Bank of Manhattan Co. of the City of N.Y., 31 N.J. 110, 155 A.2d 529, 533 (1959). 9 

If an instrument is a will, it is revoked by the testator’s execution of a new will that revokes former wills expressly or by inconsistency. N.J.S.A. 3B:3-13(a). If the instrument is held to be a contract, it remains specifically enforceable, regardless of any future revocation of a will. See, Sellyei v. Lecso, 28 N.J.Super. 593, 101 A.2d 26, 29 (Ch. Div. 1953). 

A will is inoperative or ambulatory until the death of the testator, at which time it creates a property interest in its beneficiaries. A contract immediately creates a property interest in its subject. A will is gratuitous; a contract is made in consideration of something to be paid or done by or on behalf of the other party, so that the obligation to perform and the right to require performance are reciprocal. Michaels v. Donato, 4 N.J.Super. 570, 67 A.2d 911, 913 (Ch. Div. 1949). 

Here, the court finds good and sufficient consideration to support Jean’s agreement not to change her testamentary plan to give Francis’ heirs (his children and grandchildren) one-half of the net proceeds of the sale of the marital home. 

First, the conveyance of Francis’ interest and Jean’s corresponding agreement to preserve half the home proceeds for Francis’ heirs was not some favor done by Jean to help out a financially beleagued Francis. This was a determination implemented jointly by a fully intact married couple seeking to deal with excessive debt, while also attempting to protect the marital home — their principal asset — and, crucially, to protect and preserve a share of it for the ailing Francis’ side of the family, notwithstanding the conveyance of Jean and Francis’ title to Jean. The home was a joint, marital asset acquired by the couple through their joint efforts. It was as much Francis’ as it was Jean’s. The couple evidently so viewed it, as they implemented a series of transactions designed to protect the home, protect Francis’ heirs and, should Francis have survived Jean, provide some protection for Jean’s heirs. It is contended that the arrangement was in effect a fraudulent conveyance, designed to defraud creditors. I have been provided no information as to what happened to the credit card debt as a result of the bankruptcy filing. But however one characterizes the series of transactions these were joint decisions, jointly arrived at by a couple in a marriage of decades duration. Francis’ heirs can not fairly be estopped from seeking to enforce the agreement based on speculation on the impact of the couple’s actions on the rights of unknown creditors. 

The court finds that Jean and Francis conveyed Francis’ interest in the marital home to Jean because of Francis’ impending bankruptcy. Presumably, this was done to shield the home 10 

from credit card creditors. While husband and wife agreed to take this action, they also agreed at some point to assure Francis that his family would be protected in the very likely event he predeceased Jean. We know this agreement was implemented by the Codicil (J-4) and the Affidavit and Agreement (J-3). When the agreement may have been reached is not revealed in the record, but it is obviously related to the fact that Francis surrendered all right, title and interest to the marital property to Jean, thereby depriving his side of the family of any share of this joint asset in the likely event of his death prior to Jean’s death. Jean benefitted from the scenario as well because it assured her that her family would partake of a fair share of the house in the event, admittedly not very likely, that her ailing husband survived her. 

It is contended that the transfer of the home into Jean’s name only — on January 20, 1999 — is too attenuated in time from the agreement and Codicil of October 6, 2000, some eighteen (18) months later. The fact finder is not aided by any testimony or Francis or Jean, who are deceased. The scrivener of the deed of conveyance and Francis’ bankruptcy counsel (Mr. Guerino) did not testify. And Mr. Postman’s testimony at trial was unilluminating. He represented Francis and Jean in the sale of their Jersey City home, and in the purchase of their Hasbrouck Heights home, and represented Jean in connection with the preparation and execution of her lost/destroyed April 29, 1999 Will, and possibly as to a 2001 Will (J-6), and with respect to her codicil of October 6, 2000 (J-4) and her simultaneous agreement not to modify that codicil (J-3). He also prepared and supervised the execution of Jean’s final Will — October 4, 2007 — by which Jean revoked the Codicil she had agreed not to revoke. Attorney Postman could provide at trial no explanation or recollection of why Jean wanted the codicil in the first place, nor why she wanted to reduce to writing her agreement with her husband not to deprive her husband’s family of 50% of the net proceeds of sale of the marital home. Mr. Postman also had no recollection of any discussions with Jean when she subsequently had him prepare testamentary instruments directly contrary to the codicil and contrary to her written agreement not to change the codicil. Mr. Postman did not have any recollection of having understood — or Jean having understood — that he was preparing and she was signing testamentary instruments which violated the core term of the agreement she had made with her now-deceased husband. 

The court found Mr. Postman to be truthful in his failures to recall, and finds nothing nefarious in the lack of any contemporaneous notes or other documents that might illuminate Jean’s specific thinking. I do note that Mr. Postman is handling the underlying administration of 11 

the estate on behalf of Jean’s heirs, and so may be seen as aligned with their interests under Jean’s final Will of October 4, 2007. But the consideration that support’s Jean’s promise and binds the parties to the terms of her codicil of October 6, 2000 is the receipt by Jean of her husband’s interest in the marital home (but for a life estate, which he would of course have retained – in effect – had he stayed in title), which conveyance protected her heirs in the event she pre-deceased her husband. That is consideration. It is not contended that the consideration was inadequate; only that it was non-existent. 

Notwithstanding the lack of testimony from Francis or Jean or attorney Guerino, and the unilluminating testimony of attorney Postman, the court comes to the inevitable and logical conclusion, based on the totality of the evidence presented, that the property conveyance, Jean’s Codicil and the agreement not to change the Codicil’s core provision are all related and mutually dependent, and that Jean received consideration, i.e., value, for agreeing to the series of transactions. 

Accordingly, the court finds that the testamentary provision contained in the Codicil, which Jean agreed not to change, can not be effectively revoked, and the attempt to do so is a nullity. Francis’ heirs and Jean’s heirs will share the net proceeds of the sale 50/50, as Francis and Jean agreed. The expenses as set forth in D-1, including fees of administration, are accepted and shall be taken off the top. Both counsel may within ten (10) days submit a certification of services. If there is objection to same it shall be filed and served within ten (10) days.