Claims of Oral Will Rejected

In re Estate of Wasowicz, 2023 WL 8069402, No. A-3620-21 (N.J. Super. App. Div. Nov. 21, 2023)

This case focused on whether an oral agreement made in 1987, 35 years prior to death, is akin to a Will or, in the alternative, can be an enforceable oral contract in New Jersey.

From 1971 to 1987 decedent, Victor Wasowicz, had a romantic relationship with the mother of plaintiff, J. Lynn DeGillo, though decedent and plaintiff’s mother never married.  In 1987, months after the relationship ended, plaintiff and decedent ran into each other in a supermarket parking lot where decedent allegedly stated that he wanted plaintiff to have everything he owned in exchange for plaintiff promising that she would take care of her mother and plant a tree in his memory on his death.    Nothing was ever done to memorialize such agreement in writing.

In 2022, decedent passed away intestate and his estate was to be divided between two intestate heirs.  Plaintiff claimed that the oral agreement made in 1987 was “akin to a Will” or, in the alternative, was an enforceable oral contract, making her the sole heir of the estate.

In dealing with plaintiff’s first argument, the court held that the agreement lacked the requirements of a Will under N.J.S.A. § 3B:3-2(a)(1).  Under New Jersey law, a Will must be in writing, signed by the testator, and witnessed by at least two individuals.  While the plaintiff claimed this oral agreement was “akin to a Will,” it was undisputed that there was no evidence of any written Will, let alone any document, signed by the decedent related to the purported promise.  Because of this, the court held that such oral promise was not akin to a Will as plaintiff claimed.

Plaintiff then argued that decedent’s agreement was an enforceable oral contract similar to Ballard v. Schoenberg, 224 N.J. Super 661 (App. Div. 1988).  In Ballard, a former farm worker alleged that in a 1960 oral promise, the decedent would devise his farm to her if she did the farm work and carried on the business during his lifetime.  The decedent in Ballard died in 1984, and litigation ensued.  The court enforced that contract, stating that the decedent’s oral promise predated the effective date of N.J.S.A. § 3B:1-4 by approximately 18 years, and even if the statute was in effect, the plaintiff raised no issue of the applicability of that statute.

N.J.S.A § 3B:1-4, which became effective for all contracts on May 1, 1982, provides that “[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 or extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract.”  Id. at *3 (quoting N.J.S.A § 3B:1-4).

Here, the oral promise that the plaintiff sought to enforce was made in 1987, subsequent to the effective date of N.J.S.A. § 3B:1-4.  The court held that since there was no evidence of any written Will or document signed by the decedent evidencing the oral agreement with plaintiff, plaintiff failed to satisfy the requirements of N.J.S.A. § 3B:1-4, and the oral agreement was not enforceable against the estate.  Id.