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Does a Will Remain Valid Following a Divorce

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  • 01-12-2015, 09:00 PM
    tonynewman
    Does a Will Remain Valid Following a Divorce
    My question involves estate proceedings in the state of: NJ

    oh boy here we go, my mother has just showed me a will my father wrote from 1975, is this valid?

    I have read conflicting info on the net about this, so I will state the simple facts of this will:



    in 1975 right before I was born, my now (dead father) mother were married, he had a will made up giving everything he owns to my mother and appointing her executor . he died 2months ago with no new will made up while married to his 3rd wife of nine years (currently his 3rd wife is administrator and doing everything as no will was written)

    the will itself was written by a lawyer and signed by my father, it has two witnesses that also signed it, they are both dead now, it was legal to write a will in 1975 in (Maryland) and not have it notarized, you just needed witnesses

    also, he lived and died in NJ, the will was made in Baltimore MD when he lived there in 1975



    so whats the deal guys,, you think this has a snowball chance in hell of EVERYTHING going to my mother or maybe part,, we are talking 7 figures as well here. :confused:
  • 01-12-2015, 09:14 PM
    jk
    Re: Can You Contest a Will Based on its Age
    present it to probate and see. Age itself does not invalidate a will. In fact, that is why your will should be updated regularly along with any changes in one's life such as divorce and subsequent marriages.
  • 01-12-2015, 09:18 PM
    Disagreeable
    Re: Does a Will Remain Valid Following a Divorce
    You just upped the price of poker. You need an experienced probate attorney. They should be able to be compensated by the estate as they are contesting the current executors contention that no will existed. It appears a new law took effect in NJ which precludes any bequests or designations by will to a former spouse and expanded current law to include nontestamentary transfers.
  • 01-12-2015, 09:21 PM
    harrylime
    Re: Does a Will Remain Valid Following a Divorce
    There's no reason to believe that the will itself is no longer valid. If it conformed to the requirements for execution back then, then it should still be valid. But, without the witness signatures being notarized and the witnesses being dead, it might be difficult to have it admitted.

    However, while I'm not going to go searching, every state I know of has a statutory provision that a divorce invalidates any will provisions in favor of the ex-spouse. That includes bequests and nomination to act as executor.

    Did this will contain any provision concerning your mother predeceasing him?
  • 01-12-2015, 09:25 PM
    tonynewman
    Re: Does a Will Remain Valid Following a Divorce
    Quote:

    Quoting Disagreeable
    View Post
    You just upped the price of poker. You need an experienced probate attorney. They should be able to be compensated by the estate as they are contesting the current executors contention that no will existed.

    tell me that means I don't need 5grand to hire a lawyer? is that what your saying?? they will get paid after this is over from the estate. this is just getting crazy over here at my house tonight,, let me tell you guys that, LOL so you think this will could still be valid even after the divorce 40 years ago
  • 01-12-2015, 09:27 PM
    Disagreeable
    Re: Does a Will Remain Valid Following a Divorce
    No I think that any loophole that might have allowed your mom into the estate was closed in 2004. If there is a case though, the lawyer can take his cut from the estate. Otherwise you will be paying him simply as your representative.

    Quote:

    Quoting tonynewman
    View Post
    tell me that means I don't need 5grand to hire a lawyer? is that what your saying?? they will get paid after this is over from the estate. this is just getting crazy over here at my house tonight,, let me tell you guys that, LOL so you think this will could still be valid even after the divorce 40 years ago

  • 01-12-2015, 09:27 PM
    jk
    Re: Does a Will Remain Valid Following a Divorce
    Quote:

    Even though the
    laws can automatically make some changes for you, it is best to keep your documents
    current. For example, if you should divorce and not change a Last Will & Testament that
    leaves the assets to your ex-spouse, those assets will be distributed as if your ex-spouse
    predeceased you. The result could alter your expectation as to how distribution would
    otherwise occur. This may or may not be what you want

    from: http://www.bergencountysurrogate.com/wills.pdf
  • 01-12-2015, 09:27 PM
    tonynewman
    Re: Does a Will Remain Valid Following a Divorce
    Quote:

    Quoting harrylime
    View Post
    There's no reason to believe that the will itself is no longer valid. If it conformed to the requirements for execution back then, then it should still be valid. But, without the witness signatures being notarized and the witnesses being dead, it might be difficult to have it admitted.

    However, while I'm not going to go searching, every state I know of has a statutory provision that a divorce invalidates any will provisions in favor of the ex-spouse. That includes bequests and nomination to act as executor.

    Did this will contain any provision concerning your mother predeceasing him?

    I have no idea what you mean,, let me just write down what this thing says,,, and ill post it so you can read it,, give me 30 mins or so
  • 01-12-2015, 09:32 PM
    harrylime
    Re: Does a Will Remain Valid Following a Divorce
    Quote:

    Quoting jk
    View Post
    from: http://www.bergencountysurrogate.com/wills.pdf

    Well, it ain't the statute... But, gracias anyway, jk. ;)
  • 01-12-2015, 09:38 PM
    Mr. Knowitall
    Re: Does a Will Remain Valid Following a Divorce
    So the issue here is that your father divorced your mother after drafting a will that left to her his entire estate, but never drafted a subsequent will?

    Per NJSA Sec. #B:1-1 (definitions), "'Governing instrument' means a deed, will, trust, insurance or annuity policy, account with the designation 'pay on death' (POD) or 'transfer on death' (TOD), security registered in beneficiary form with the designation 'pay on death' (POD) or 'transfer on death' (TOD), pension, profit-sharing, retirement or similar benefit plan, instrument creating or exercising a power of appointment or a power of attorney, or a dispositive, appointive, or nominative instrument of any similar type."
    Quote:

    Quoting NJSA Sec. 3B:3-14 Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse. 3B:3-14. Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
    a. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment:

    (1) revokes any revocable:

    (a) dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;

    (b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual's former spouse, or on a relative of the divorced individual's former spouse; and

    (c)nomination in a governing instrument of a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity; and

    (2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.

    In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual's remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.

    A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.

    b. For purposes of this section: (1) "divorce or annulment" means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment; (3) "divorced individual "includes an individual whose marriage has been annulled; and (4) "relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.

    c. This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.

    d. A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section.

    Quote:

    Quoting tonynewman
    ...it was legal to write a will in 1975 in (Maryland) and not have it notarized, you just needed witnesses

    That remains the case. See NJSA Sec. 3B:3-2. An optional self-proving affidavit can help get the will admitted to probate, but that's the only context in which notarization is required. See NJSA Sec. 3B:3-4.
    Quote:

    Quoting tonynewman
    also, he lived and died in NJ, the will was made in Baltimore MD when he lived there in 1975

    In which case New Jersey's laws about the execution of a will are irrelevant; but there's also no requirement of notarization in Maryland.
  • 01-12-2015, 10:04 PM
    tonynewman
    Re: Does a Will Remain Valid Following a Divorce
    here is the will:

    I (DAD) of Baltimore city, state of Maryland being of sound and disposing mind, memory and understanding, do hereby make publish and declare the following to be my last will and testament, hereby revoking any and all other wills and codicils and will heretofore made by me

    first: I direct my executrix hereinafter named, to pay from my estate all of my just debts, taxes and funeral expenses, I further direct that all taxes including inheritance taxes, united states estate taxes,maryland estate taxes and all other similar taxes payable by reason of my death shall be paid out of principal of my residuary estate and that no person shall be required to contribute to the payment of any portion of such taxes.


    second: I give devise and bequeath my entire estate, real, personal and mixed, of whatsoever kind of nature and wheresoever situate of which I may die seized and possessed, unto my wife, (my mothers name)



    third: I hereby appoint my wife (mothers name) to be executrix of this my last will and testament, and excuse her from the giving of bond, except that required by law, for the performance of her duties hereunder.

    I do hereby confer upon my executrix all powers necessary, proper or convenient for the preservation, management and direction of my estate. I hereby fully authorize and empower her at any time or times and for such purpose or purposes as she may deem best, and without pervious application to or order from the court of Baltimore city or any other court of Baltimore city under whose jurisdiction she may administer or manage my estate, to invest, reinvest, sell, lease, exchange, mortage, transfer and assign all or any part of my estate real or personal without obligation on the part of anyone dealing with my said executrix to see the application of any purchase money paid to her.

    in testimony whereof I (dad) have set my hand and seal this (dated 1975) and his signature


    signed, sealed, published and decleared by(dad) the above named testator, as and for his last will and testament, in the presence of us who at his request, in his presence and in the presence of each other. have hereunto subscribed our names as witnesses

    (witness number one's signature (now deceased)
    (witness number twos signature (now deceased)

    - - - Updated - - -

    Quote:

    Quoting Mr. Knowitall
    View Post
    So the issue here is that your father divorced your mother after drafting a will that left to her his entire estate, but never drafted a subsequent will?.

    yes,, that is correct,, I don't understand the other things you talked about though,, all that lawyer stuff, can you dumb it down for a simple man like myself, lol
  • 01-12-2015, 10:21 PM
    harrylime
    Re: Does a Will Remain Valid Following a Divorce
    This is where you spend a few bucks on that attorney for a review of that will and an opinion on how it affects you.

    The questions are:

    1) Would the will likely be admitted in New Jersey?

    2) Do you stand in your mother's place?


    Your stepmother can not be cut out completely (except voluntarily). But there could be quite a difference between what she is entitled to under intestacy and what she would receive by exercising her right to a surviving spouse's elective share.
  • 01-12-2015, 10:26 PM
    tonynewman
    Re: Does a Will Remain Valid Following a Divorce
    Quote:

    Quoting harrylime
    View Post
    This is where you spend a few bucks on that attorney for a review of that will and an opinion on how it affects you.

    The questions are:

    1) Would the will likely be admitted in New Jersey?

    2) Do you stand in your mother's place?


    Your stepmother can not be cut out completely (except voluntarily). But there could be quite a difference between what she is entitled to under intestacy and what she would receive by exercising her right to a surviving spouse's elective share.

    my mother stated just now that she is worried that this will could somehow be used against me, as it was written before I was born, and that the current wife could say he wished everything to his wife even though my mothers name is listed after the word wife in the will, (im not in the will due to not being born yet) and she could end up getting everything and I would get nothing. do you think this in anyway could be used against me?

    any comment on that?
  • 01-12-2015, 10:32 PM
    harrylime
    Re: Does a Will Remain Valid Following a Divorce
    Quote:

    do you think this in anyway could be used against me?
    No.
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