The decedent, Keith R. O’Malley, was the father of two children from two different relationships. His minor son, E.L., resided with E.L.’s mother in New York, although O’Malley was a New Jersey resident. O’Malley, who was financially successful, died unexpectedly at the age of 36.

In 2008, O’Malley and E.L.’s mother had entered into a child support agreement. It obligated O’Malley to pay $3,000 per month in child support until E.L. reached age 21, as well as E.L.’s childcare and unreimbursed medical expenses, and an annual contribution into a college account. The agreement was incorporated into a New York Child Support Order in March 2008.

Earlier that same month, O’Malley had executed a Last Will and Testament in which he specifically disinherited his minor son, instead leaving his estate to his minor daughter, his dog, and in trust for other family members.

Following his death, E.L.’s mother filed an Order to Show Cause seeking to invalidate the will and to enforce the child support agreement. She asserted the following causes of action:

(1) Protective Arrangement pursuant to N.J.S.A. 3B:12-1; (2) Mistake; (3) Lack of Capacity; (4) Undue Influence; (5) Probable Intent; and (6) Breach of Contract.

The probate judge had dismissed the claims raised by E.L.’s mother, concluding,

No matter how unfortunate these circumstances are, I find I cannot invalidate the [w]ill…. I find that there is nothing in the paper[s] that would allow me to do that, that would allow me to enter into a protective arrangement or enforce the child support agreement because that is a New York agreement. Perhaps there may be something in New York. But New York law states that they cannot be enforced after death.

Following the dismissal, E.L.’s mother appealed the dismissal of the probable intent and mistake claims, claiming that factual issues precluded the dismissal. The appellate court affirmed the dismissal of these claims, finding that the probate court had properly exercised its broad discretion in determining that a plenary hearing was not warranted.

On the breach of contract claim, however, the Appellate Division reversed the dismissal and remanded the claim. The appeals court focused on the child support agreement, rather than the will, and whether the disinherited son should be considered a creditor, rather than a beneficiary, of his father’s estate. Although the lower court had concluded that New York law does not allow support orders to survive death, the Appellate Division found that New York case law might permit the support obligation to survive the father’s death in this case. To make a determination on this issue, it found that the child support order had to be examined to ascertain whether the parties intended the obligation to survive death. It left to the probate judge the decision as to whether discovery or a plenary hearing would be needed to resolve the issue. In the event that the probate court finds that the support order survived O’Malley’s death, “the court may then fashion an appropriate remedy to ensure the future payment of the support obligations.”

A copy of In re Estate of O’Malley can be found here – In re Estate of O’Malley

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