In Re Estate of Kremer, No. A-3649-22 (App. Div. Dec. 4, 2024)
The Decedent executed a self-proving will on October 7, 1992, naming one sister as the executor (the Defendant/Appellant) and the other as the successor executor. In 1997, the Decedent married her husband (the Plaintiff), and they had three children. She did not execute another will after her marriage or the birth of her children. In 2014, the Decedent filed for divorce but passed away before the divorce was finalized, resulting in the dismissal of the divorce complaint.
The Plaintiff sought appointment as the administrator of the Decedent’s estate, but the Defendant opposed this. The Plaintiff filed a verified complaint and order to show cause for his appointment, naming the Decedent’s sisters as defendants. The Defendant cross-claimed, seeking to probate the 1992 will and to be appointed as executor.
The trial court found that the presumption of revocation was not overcome by the Defendant. The original will could not be produced, and since it was executed in 1992, before the Decedent’s marriage and under her maiden name, the court concluded that she revoked the will under N.J.S.A. 3B:3-13. The court ordered the estate to be distributed according to N.J.S.A. 3B:5-3, without resolving the appointment of the administrator. The Defendant subsequently appealed.
The Appellate Division upheld the Chancery Division’s ruling that the will had been revoked, stating, “It is well-settled that if a will was last seen in the possession of the decedent and cannot be found upon the decedent’s death, there is a presumption the decedent destroyed the will with the intent to revoke it.” Kremer, slip op. at 7. The court noted that a proponent intending to probate a copy of a lost will must provide “clear, satisfactory, and convincing [evidence] to rebut the presumption of the original’s revocation or destruction.” Id. (quoting In re Estate of Ehrlich, 427 N.J. Super. 64, 75 (App. Div. 2012)).
To apply the presumption of revocation to a lost will, the testator must have had access to their will before death, and it must not be found after death. See In re Davis’ Will, 127 N.J. Eq. 55, 57 (E. and A. 1940). In this case, the record shows that only the Decedent had possession of the original will, which was never found. Therefore, the trial court determined that insufficient evidence was provided to rebut the presumption, and the Appellate Division did not overturn this finding.
The Defendant raised additional arguments not presented at the trial, and although appellate courts generally will not consider issues not raised below the Appellate Division briefly addressed the issues. The court quickly dispensed with Defendant’s objection to the trial court’s refusal to hold a plenary hearing and to grant a stay, but remanded to the Chancery Division with respect to the Defendant’s arguments regarding estate distribution and the applicability of N.J.S.A. 3B:5-3.
Under the amended N.J.S.A. 3B:5-3, effective January 8, 2024, the Plaintiff would be disqualified from inheriting from the Decedent’s estate due to the filing of the divorce complaint. However, the Family Part dismissed the divorce complaint on January 24, 2023, prior to the amendment’s enactment, and pipeline retroactivity does not apply.
“Such an outcome is a matter of ‘great public interest,’ and warrants [] consideration despite the issue not being raised below.” Kremer, slip op. at 12; See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 235 (1973). Accordingly, the Appellate Division remanded to the Chancery Division to supplement the record solely on the question of estate distribution and the applicability of N.J.S.A. 3B:5-3.
Read the full opinion here: NJ Courts Opinion