In the Matter of Reilly, 201 N.J. Super. 306 (1985)
Author: Anonymous

Facts: In 1976 Mr. Reilly executed a will leaving his estate to his then fiancee, appointing her executrix.  The next day they were married.  2 years later that marriage was annulled and they entered an agreement releasing each other of all claims to the property of the other.  5 years later he died without having formally revoked or altered his will.  The will was offered for probate and his nieces and nephews filed a caveat claiming the will was revoked by statute.

Issue: Whether the will of the testator was revoked by operation of law when his previous marriage was annulled?

Holding: The devise to the former spouse was revoked by operation of law.  The legislature intended that any provision in a will in favor of a former spouse of a decedent is to be revoked when there is a divorce or dissolution of marriage prior to death.  This provision is equally applicable when the marriage takes place after execution of the will.

Procedure: Tr. Judge issued Show Cause order to next of kin, and appointed ex-wife as temporary administrator.  Tr ct held that the statute revoked the testamentary dispositions to the former spouse and evidence of intent to the contrary is irrelevant. Superior Ct. Affirmed.        

Rule: Dissolution of a marriage shall revoke testamentary dispositions or appointment of property made to a “former spouse,” unless the will expressly provides otherwise.

Rationale: The state’s prior scheme provided that a will could only be revoked by some physical act or written substitution, the dissolution of a marriage was insufficient.  The former burden was on the testator to indicate a revocation.   Now revocation occurs as a matter of law on the termination of marriage and the burden is on the testator to indicate a revival by one of the accepted methods: by remarriage to the former spouse, invalidation of the judgment of divorce, re-execution of the will or execution of a codicil.   The testator never undertook any act of revival.

The statute mandates applicability to wills of decedents dying on or after Sept 1978, and the testator’s death falls well within that time.  It is the date of death that triggers the operation of the statute.  A will ordinarily is ambulatory and speaks only on the death of the testator.  The enacted statute does not exempt will that preceded the marriage, only two things are required: a will executed by the testator; and a subsequent divorce or annulment.  The focus is on the termination of the marriage no the status of the spouse at the time the will was made. A showing of the testator’s intent is not required for a revocation upon divorce.