Wiedemann v. Wiedemann

MOLINARI, J.

This is an appeal by Charlotte L. Wiedemann from the judgment of the trial court denying her petition for preliminary distribution and decreeing that she is not entitled to distribution of any portion of the estate of her husband, Fred C. Wiedemann. The sole issue presented on this appeal is whether the nontestamentary agreement which Charlotte entered into with her husband prevents her from taking certain personal property bequeathed to her in her husband’s will, which was executed prior to the agreement and not changed thereafter. We are of the opinion that it does.

Fred C. Wiedemann died on March 18, 1963, leaving a will dated July 31, 1953 and a codicil dated January 29, 1955. Fred’s will, which was duly admitted to probate along with the codicil, specifically bequeathed to Charlotte, who married decedent on August 3, 1953 and remained married to him until his death, all of testator’s furniture, household effects, clothes, and other personal effects, including automobiles, war bonds and personal bank accounts. The residue of Fred’s estate was left to his two children, Howard Wiedemann and Ann Wiedemann Kaplan.

On September 1, 1959 Fred and Charlotte entered into a written agreement entitled “Agreement Between Husband and Wife Concerning Status of Their Respective Properties, for Irrevocable Designation of Insurance Beneficiary, Post Mortem Assurances and Waivers of Rights to Inherit by Will, etc.” Under this agreement, Fred agreed to create an irrevocable trust naming Charlotte the principal beneficiary, and to irrevocably make Charlotte the sole and principal beneficiary of certain life insurance policies upon Fred’s life. In addition both parties agreed to retain in joint tenancy the family home and furnishings and a certain savings account held by them. The agreement then contains the following provisions: “Furthermore, each party hereto waives any

[271]

right to inherit from the estate of the other party hereto, either by will or otherwise, it being mutually agreed between the parties hereto that the provisions for each of them to receive property upon the demise of the other, as hereinabove set forth, are sufficient and adequate and are all that is intended to be received by either party. It is understood that each party hereto intends to will the entire balance of his and her separate property to their issue, respectively, of their respective prior marriages and that neither of them will expect to inherit from the other by will or in the absence of will. It is therefore further expressly agreed that each party hereto shall not inherit from the other party by will or otherwise, except as hereinabove set forth, allowing for any additions to or substitutions for the various joint tenancy holdings hereinabove set forth, and each party therefore hereby further agrees that in the event either he or she should receive or be entitled to receive any personal or real property of any nature whatsoever under the last will and testament of the other party hereto, that each and all of such real and personal property shall then be received by the contracting party herein as trustee for the immediate heirs at law of the deceased party, and that he or she will immediately distribute the same to said heirs at law upon the receipt thereof.”