In re the Estate of Sharinay

New York Surrogate's Court

In re the Estate of Sharinay

58 Misc. 2d 334, 295 N.Y.S.2d 502, 1968 N.Y. Misc. LEXIS 1572

CourtNew York Surrogate's Court

DecidedApril 15, 1968

StatusPublished

Cited by2 cases

This text of 58 Misc. 2d 334 (In re the Estate of Sharinay) 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.

Bluebook

In re the Estate of Sharinay, 58 Misc. 2d 334, 295 N.Y.S.2d 502, 1968 N.Y. Misc. LEXIS 1572 (N.Y. Super. Ct. 1968).

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Opinion

EPTL 5-1.4 provides “ (a) If, after executing a will, the testator is divorced * * * the divorce * * * revokes any disposition or appointment of property made by the will to the former spouse and any provision therein naming the former spouse as executor or trustee, unless the will expressly provides otherwise, (b) The provisions of this section apply to the will of a testator who dies on or after its effective date, notwithstanding that the will was executed and the divorce * * * was procured prior thereto.”

John D. Bennett, S.

The propounded instrument will be admitted to probate, it having been established that it was executed in the manner prescribed by EPTL 3-2.1, and that at the time of its execution the decedent was of sound mind and free from restraint.

The citation in addition requests a determination, pursuant to EPTL 5-1.4, that the provision for the former spouse of the decedent be declared revoked by reason of a divorce obtained by the decedent from her former spouse. The former spouse, Joseph Gr. Sharinay, has been cited and also has submitted an affidavit in which he affirms the fact of the divorce. Annexed to his affidavit is an authenticated copy of a Mexican divorce decree which recites his appearance by an attorney in fact.

Accordingly, upon the will being admitted to probate it is determined that the provisions for the former spouse are revoked as a result of the divorce. Since it is the opinion of the court that [335]*335the will should be revoked only insofar as the former spouse is concerned, the balance of the will will be given effect as if such former spouse predeceased the decedent (see Practice Commentary to EPTL 5-1.4, McKinney’s Cons. Laws of N. Y., Book 17B). Letters testamentary will issue to the petitioner as substitute executor.

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EPTL 5-1.4 provides “ (a) If, after executing a will, the testator is divorced * * * the divorce * * * revokes any disposition or appointment of property made by the will to the former spouse and any provision therein naming the former spouse as executor or trustee, unless the will expressly provides otherwise, (b) The provisions of this section apply to the will of a testator who dies on or after its effective date, notwithstanding that the will was executed and the divorce * * * was procured prior thereto.”

John D. Bennett, S.

The propounded instrument will be admitted to probate, it having been established that it was executed in the manner prescribed by EPTL 3-2.1, and that at the time of its execution the decedent was of sound mind and free from restraint.

The citation in addition requests a determination, pursuant to EPTL 5-1.4, that the provision for the former spouse of the decedent be declared revoked by reason of a divorce obtained by the decedent from her former spouse. The former spouse, Joseph Gr. Sharinay, has been cited and also has submitted an affidavit in which he affirms the fact of the divorce. Annexed to his affidavit is an authenticated copy of a Mexican divorce decree which recites his appearance by an attorney in fact.

Accordingly, upon the will being admitted to probate it is determined that the provisions for the former spouse are revoked as a result of the divorce. Since it is the opinion of the court that [335]*335the will should be revoked only insofar as the former spouse is concerned, the balance of the will will be given effect as if such former spouse predeceased the decedent (see Practice Commentary to EPTL 5-1.4, McKinney’s Cons. Laws of N. Y., Book 17B). Letters testamentary will issue to the petitioner as substitute executor.

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Bluebook (online)

58 Misc. 2d 334, 295 N.Y.S.2d 502, 1968 N.Y. Misc. LEXIS 1572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-sharinay-nysurct-1968.

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