Court Concludes Testamentary Provision in Codicil Could Not Be Effectively Revoked

2016 N.J. Super. Unpub. LEXIS 425 (Ch. Div. Feb., 24, 2016)


Decedent Jean M. O’Mealia (“Jean”) was predeceased by her husband, William Francis Xavier O’Mealia (“William”).  It was the second marriage for both of them. They had no children together but both had children from their prior marriages.

At the time of her death, Jean owned a home titled solely in her name. The property had been conveyed to Jean by deed from herself and William.

Pursuant to Jean’s 2007 Will, the proceeds from the sale of the home were divided among her children.  She did have a previous Will, later lost, and a Codicil which referred to the Will.  The Codicil provided that the proceeds from the sale of the home would be divided 50 percent to her children and 50 percent to William’s children and grandchildren.

The same attorney who prepared the Codicil also prepared an affidavit and agreement that Jean signed in which she agreed that, in the event William predeceased her, she would not change her Will to remove his children and grandchildren as beneficiaries to receive half the proceeds from the house sale.

William’s son filed a lawsuit to set aside the 2007 Will and to have admitted to probate the lost Will and Codicil based on the affidavit and agreement.

After a trial, the trial court found that there was an agreement between Jean and William that Jean would create a testamentary plan to provide for William’s family to get one-half of the net proceeds of the marital home when she died, should he predecease her.  The court further found that Jean agreed that she would not change the plan to disinherit William’s family from this one-half interest. The court also found consideration to support Jean’s agreement not to change her testamentary plan to give William’s children and grandchildren one-half of the net proceeds of the sale.

Accordingly, the court concluded that the testamentary provision contained in the Codicil, which Jean agreed not to change, could not be effectively revoked; the attempt to do so was a nullity.