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Decedent’s Divorce Did Not Invalidate Provisions of Her 1996 Will Which Made Her Former Father-In-Law the Alternate Executor and Alternate Beneficiary/Proof Was Insufficient to Demonstrate the 1996 Will Had Been Revoked by a Lost Will

In a full-fledged opinion by Justice Scudder, over a lengthy dissent by Justice Peradotto, the Fourth Department affirmed Surrogate’s Court’s determination that a 1996 will must be admitted to probate and any provisions of the will not affected by decedent’s divorce must be honored.  The petitioner was the (divorced) decedent’s former father-in-law who was named alternate executor and alternate beneficiary of the 1996 will.  Under New York law, decedent’s divorce revoked the testamentary distribution to her ex-husband and revoked her ex-husband’s appointment as executor, but the provisions of the will relating to decedent’s former father-in-law remained viable. The objectants argued that the 1996 will had been revoked by a subsequent will which was lost. The Fourth Department found that there was insufficient evidence presented at the hearing to show that the lost will was duly executed and attested and, therefore, there was insufficient evidence the prior will had been revoked:

Pursuant to New York law, the testamentary distribution to the ex-husband and his appointment as executor are revoked, but all other provisions of the will remain valid (see EPTL 5-1.4 [a], [b]…). * * *

We are constrained to conclude that the evidence at the hearing is insufficient to establish that the Lost Will was duly executed and attested … .  With respect to New York’s EPTL 3-2.1, there was no testimony that the document was signed or acknowledged by decedent in the presence of the witnesses. Furthermore, there was no evidence that decedent declared to the witnesses that the document was her will.  Finally, although the neighbor testified that decedent’s signature appeared on the document, there was no evidence that the signature was at the end of the document. Matter of Lewis…, 1170, 4th Dept 1-3-14

 

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