In re the Estate of DiGiacomo

New York Surrogate's Court

In re the Estate of DiGiacomo

87 Misc. 2d 674, 386 N.Y.S.2d 277, 1976 N.Y. Misc. LEXIS 2274

DecidedMarch 16, 1976

StatusPublished

This text of 87 Misc. 2d 674 (In re the Estate of DiGiacomo) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of DiGiacomo, 87 Misc. 2d 674, 386 N.Y.S.2d 277, 1976 N.Y. Misc. LEXIS 2274 (N.Y. Super. Ct. 1976).

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Opinion

Irving A. Green, J.

A petition for the probate of the last will and testament of Mario DiGiacomo has been presented by his former spouse. Petitioner requests the issuance to herself of letters testamentary. The propounded instrument, executed March 5, 1968, bequeaths and devises substantially the entire estate to petitioner, with substitutionary gifts to certain of decedent’s children, and nominates her executrix. A daughter, Gail DiGiacomo Lindemann, is nominated alternate executrix. Thereafter, the parties were divorced by judgment of the Supreme Court, Orange County, dated the 26th day of October, 1973. The decree of divorce revoked any disposition or appointment of property made in the propounded instrument to the former spouse and revoked any provision therein naming the former spouse as executrix. If admitted to probate, the will shall take effect as if such former spouse had died immediately before such testator. (EPTL 5-1.4.)

On the allegations contained in the petition herein, petitioner has no standing to propound the will. (SCPA 1402.) By virtue of EPTL 5-1.4, petitioner is not a person designated in the will as legatee, devisee or fiduciary. Nor is petitioner a [675]*675person interested as that term is defined as any person entitled either absolutely or contingently to share as beneficiary in the estate. (SCPA 103, subd 36.)

Accordingly, the petition is dismissed without prejudice to a new petition by a proper party.

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Irving A. Green, J.

A petition for the probate of the last will and testament of Mario DiGiacomo has been presented by his former spouse. Petitioner requests the issuance to herself of letters testamentary. The propounded instrument, executed March 5, 1968, bequeaths and devises substantially the entire estate to petitioner, with substitutionary gifts to certain of decedent’s children, and nominates her executrix. A daughter, Gail DiGiacomo Lindemann, is nominated alternate executrix. Thereafter, the parties were divorced by judgment of the Supreme Court, Orange County, dated the 26th day of October, 1973. The decree of divorce revoked any disposition or appointment of property made in the propounded instrument to the former spouse and revoked any provision therein naming the former spouse as executrix. If admitted to probate, the will shall take effect as if such former spouse had died immediately before such testator. (EPTL 5-1.4.)

On the allegations contained in the petition herein, petitioner has no standing to propound the will. (SCPA 1402.) By virtue of EPTL 5-1.4, petitioner is not a person designated in the will as legatee, devisee or fiduciary. Nor is petitioner a [675]*675person interested as that term is defined as any person entitled either absolutely or contingently to share as beneficiary in the estate. (SCPA 103, subd 36.)

Accordingly, the petition is dismissed without prejudice to a new petition by a proper party.

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Bluebook (online)

87 Misc. 2d 674, 386 N.Y.S.2d 277, 1976 N.Y. Misc. LEXIS 2274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-digiacomo-nysurct-1976.