Lead Opinion
OPINION OF THE COURT
I
Robyn R. Lewis (decedent) was married to James A. Simmons (ex-husband), and they divorced in 2007. The parties resided in Texas during the course of the marriage, but they purchased property in Clayton, New York. Pursuant to the divorce decree entered in the State of Texas, decedent was awarded, inter alia, the real property located in Clayton. Decedent relocated permanently to that residence, and she lived there until her death in March 2010. Following decedent’s death, her parents applied for letters of administration, and amended letters of administration were issued in May 2010. Decedent’s parents thereafter renounced their interest in the Clayton property so that it would pass to decedent’s brother and half brother,
Decedent’s parents, brother and half brother (collectively, objectants) filed objections to probate. They contended that, inasmuch as decedent was a domiciliary of Texas at the time the 1996 will was executed as well as at the time of her divorce, the nomination of petitioner as the alternate executor and alternate beneficiary failed under the former Texas Probate Code. Pursuant to section 69 (b) of that code,
“[i]f, after making a will, the testator’s marriage is dissolved ... by divorce ... , all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise” (emphasis added).
Objectants further contended that, because the divorce decree required the ex-husband to return any “paperwork associated with any items of the decree,” his failure to return the 1996 will to decedent wrongfully and fraudulently deprived decedent of the opportunity to access and evaluate the 1996 will. As a result, objectants contended that petitioner was “estopped from claiming any benefit or nomination from the late offering” of the 1996 will.
In supplemental objections, objectants contended that the 1996 will was “revoked by the revocatory language and content of a Second and Lost Will” executed by decedent (lost will). Fol
II
We note as a preliminary matter that our dissenting colleague would reverse primarily based on her conclusion that, because petitioner failed to account for all of the alleged copies of the 1996 will, he failed to rebut the presumption that the 1996 will was revoked by an act of destruction performed by decedent (see EPTL 3-4.1 [a] [2] [A]). Objectants have never contended, however, that the 1996 will was revoked by destruction. Aside from challenges to the testamentary dispositions in the 1996 will, the only other contention raised by objectants is that the 1996 will was revoked by the purported execution of the lost will (see generally EPTL 3-4.1 [a] [1] [A], [B]).
It is well settled that “[a]n issue may not be raised for the first time on appeal . . . where[, as here,] it ‘could have been obviated or cured by factual showings or legal countersteps’ in the trial court” (Oram v Capone,
“For us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play. We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made. In sum, [petitioner] de*208 serves an opportunity to refute the proposition on which the dissent would decide this appeal against him” {id.).
As the Court of Appeals recognized in Misicki,
“[w]hile appellate judges surely do not sit as automatons . . . , they are not freelance lawyers either. Our system depends in large part on adversary presentation; our role in that system is best accomplished when [we] determine [ ] legal issues . . . that have first been considered by . . . the trial . . . court” (id. [internal quotation marks omitted]).
“In our view, it would be fundamentally unfair to determine this issue sua sponte and conclude, as does our dissenting colleague, that [petitioner] failed to meet [his] initial burden” of rebutting the presumption that the 1996 will was revoked by destruction (Woods v Design Ctr., LLC,
The dissent attempts to avoid the rules of preservation by contending that, regardless of preservation, “it was petitioner’s burden, as proponent of the 1996 will, ‘to make the proofs essential to its admission to probate’ ” (quoting Matter of Schillinger,
Ill
We now address those contentions raised by objectants on appeal. Although our dissenting colleague questions whether the ex-husband or his parents had possession of the 1996 will, objectants contend that petitioner and his wife were the custodians of the 1996 will and that they failed in their duty as custodians. It is well settled that one who accepts custody of an original will
Even assuming, arguendo, that the ex-husband also could have been considered a custodian of the will, we conclude that neither the ex-husband nor his parents were under any legal obligation to return the 1996 will to decedent at any time before her death inasmuch as it is undisputed that she never made a demand for its return (see id. at 253-254). Although decedent’s divorce decree required the ex-husband to return financial paperwork and any paperwork “needed to effectuate [the] division [of property],” the 1996 will was not a document needed to effectuate the division of any property. Moreover, petitioner and his wife were not parties to the divorce decree and thus were not subject to its provisions.
IV
Objectants further contend that the nomination of petitioner as alternate executor and alternate beneficiary must fail because such a nomination would fail under the law of Texas, and it would be inequitable to allow decedent’s former father-in-law to be the sole beneficiary of her estate. It is undisputed that the 1996 will was a valid will and that the law of Texas, if applicable, would invalidate any testamentary distributions to petitioner (see former Tex Prob Code § 69 [b]). In New York, however, a divorce operates to revoke testamentary distributions to former spouses only (see EPTL 5-1.4 [a], [b]). As objectants concede, New York law governs resolution of this case inasmuch as the real property is situated in this state and decedent was a domiciliary of this state at the time of her death (see EPTL 3-5.1 [b] [1], [2]; see generally Matter of Good,
Contrary to the position of the dissent, such a result does not “circumvent the intent of the statute.” Even if we could assume that the ex-husband might someday inherit or obtain the property from petitioner, we cannot decide petitioner’s current legal rights to property based on our speculation of what he might do with that property in the future.
V
Finally, objectants contend that, although there is insufficient evidence to support admitting the lost will to probate {see SCPA 1407), there is sufficient evidence to establish that the lost will was duly executed, which thereby operates to revoke the 1996 will. We reject that contention.
Pursuant to EPTL 3-4.1 (a) (1) (A) and (B), “[a] will or any part thereof may be revoked or altered by . . . [ajnother will [or] [a] writing of the testator clearly indicating an intention to effect such revocation or alteration, executed with the formalities prescribed . . . for the execution and attestation of a will” (emphasis added). The only evidence at the hearing concerning the lost will was the testimony of decedent’s former neighbor, whom the Surrogate found to be “a highly credible witness.” Insofar as relevant to the issues on this appeal, the neighbor testified that, during the late summer or early fall of 2007, decedent received a package that she showed to the neighbor. The neighbor opened the package, which contained a cover letter from “an attorney’s office” and a legal document entitled “Last Will and Testament.” According to the neighbor, decedent
The neighbor testified that, in addition to revoking all prior wills and naming decedent’s mother as the executrix, the legal document instructed that decedent’s property would be left to her brothers, with a small stipend to a niece and nephew. The legal document was signed by decedent, and “[t]here were two witnesses’ signatures.” The neighbor could not recall the names of the witnesses, but testified that the document stated that they had witnessed decedent’s signature to the document. There was a raised and embossed notary seal and a statement at the bottom of the third page indicating that the notary attested to the signing of the legal document. Although the neighbor retained the legal document for a period of time, she returned it to decedent before moving away from the area. It is undisputed that, despite a diligent search of decedent’s residence, neither that document nor any other purported will was discovered.
Pursuant to EPTL 3-5.1 (c), a will disposing of real property situated in this state
“is formally valid and admissible to probate in this state . . . if it is in writing and signed by the testator, and otherwise executed and attested in accordance with the local law of. . . [t]his state; . . . [t]he jurisdiction in which the will was executed, at the time of execution; or . . . [t]he jurisdiction in which the testator was domiciled, either at the time of execution or of death.”
Objectants contend that the evidence at the hearing was sufficient to establish that the lost will was duly executed and attested pursuant to EPTL 3-2.1. We note, however, that the testimony at the hearing failed to establish whether the lost will was executed and attested in New York or Texas. We therefore must consider the execution requirements for wills under the laws of both states.
In order for a will to be duly executed and attested in New York, the testator must sign the document at the end; the testator must sign or acknowledge the signature in the presence of the attesting witnesses; the testator must declare to each of the attesting witnesses that the instrument is his or her will; and there must be two attesting witnesses who shall, within 30 days, attest the testator’s signature and, at the request of the testator, sign their names and affix their residence addresses (see EPTL 3-2.1 [a] [l]-[4]). In order for a will to be duly executed in
We are constrained to conclude that the evidence at the hearing is insufficient to establish that the lost will was duly executed and attested under the laws of either state. 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. With respect to former Texas Probate Code § 59, there was no evidence that the purported witnesses were over the age of 14 or that their signatures were in their own handwriting.
Although our dissenting colleague concludes that we may presume that the lost will was properly executed, we disagree with that conclusion. There is no dispute that, “fi]f an attorney-drafter supervises the execution of a will, there is a presumption of regularity that the will was properly executed” (Matter of Halpern,
As the First Department stated in Halpern, although “a valid attestation clause raises a presumption of a will’s validity, . . . it is nonetheless incumbent upon Surrogate’s Court to examine all of the circumstances surrounding the execution of the document in order to ascertain its validity” (
Objectants contend in the alternative that, even if the evidence presented at the hearing failed to establish the elements of due execution and attestation, thereby precluding the lost will from being admitted to probate, the evidence, including evidence of decedent’s intent, was sufficient in equity to establish that the 1996 will was revoked. We reject that contention and respectfully disagree with the dissent’s conclusion to the contrary.
“With few exceptions not here relevant, the exclusive mechanism for revocation of a testamentary instrument is contained in EPTL 3-4.1. That section wisely requires that a revocatory instrument be executed with the same formalities as those needed to make a valid will. A less stringent provision would open the door to the dual evils of fraud and perjury” (Coffed,46 NY2d at 519 ).
Thus, if a document is not duly executed and attested in accordance with EPTL 3-2.1, then it cannot operate to revoke, pursuant to EPTL 3-4.1, a prior, duly executed and attested will.
We agree with the dissent that, even if the evidence concerning a subsequent will is insufficient to permit the subsequent will to be admitted to probate pursuant to SCPA 1407, that evidence may nevertheless be sufficient to establish that an earlier will was revoked (see Matter of Wear,
VI
With respect to the dissent’s general considerations of equity and the power of the Surrogate to fashion equitable remedies, we note that, even if “[t]he equities in the instant case may appear to favor a different result, ... a more significant consideration is that the formalities attendant upon the revocation of a will are necessary to prevent mistake, misapprehension and fraud” (Coffed,
“surmise that [decedent] intended to change [her] will in accord with a natural desire to benefit [her relatives] exclusively[,] ... it is not for the courts to circumvent the statutory requirements regarding the revocation of a will. Those provisions do not contemplate an implied revocation, but declare that revocation must be effected with the same formality with which a will is executed or by some act of mutilation or destruction” (id.).
VII
Accordingly, because objectants failed to establish that the 1996 will was revoked, we conclude that the decree in each appeal should be affirmed.
Dissenting Opinion
(dissenting). I respectfully dissent. In my view, the record clearly establishes that decedent intended to, and did in fact, revoke her will dated July 15, 1996, both by execution of
I
The facts of this case are largely undisputed. Decedent married James A. Simmons (ex-husband) in Texas in 1991. In July 1996, decedent executed a last will and testament (1996 will), in which she left all of her property to her ex-husband and, in the event that he predeceased her, to her ex-husband’s father, James Robert Simmons, the petitioner herein. Significantly, as noted in the Surrogate’s decision, it is not clear from the record whether decedent executed four originals of the 1996 will or one original and three copies. When decedent executed the 1996 will, she and the ex-husband owned a home together in Texas and had modest savings. Decedent and the ex-husband thereafter purchased property in Clayton, New York (New York property) from decedent’s mother and an uncle. The property had been in decedent’s family for several generations.
About 10 years later, decedent petitioned for divorce. While the divorce was pending, she was hospitalized twice for grand mal seizures relating to alcohol abuse. Doctors told decedent that, if she continued to drink, she would be dead within six months. In April 2007, a Texas court granted decedent a divorce on the ground of insupportability, i.e., that “the marriage ha[d] become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation” (Tex Fam Code § 6.001). The ex-husband was awarded the marital residence in Texas and all of its contents with the exception of decedent’s personal effects, and decedent was awarded the New York property. Both parties were directed to “execute, sign and deliver to the other party all property and/or paperwork associated therewith for any items awarded to the other party . . . within ten days, including any deeds, releases, transfer of title, etc. as needed to effectuate this division” (emphasis added).
Decedent thereafter moved to the New York property and, on March 21, 2010, she died at age 43 from alcohol-related
Approximately eight months after decedent died, the ex-husband learned of her death through an Internet search. Shortly thereafter, petitioner filed the 1996 will in Surrogate’s Court and petitioned for probate of that will and issuance of letters testamentary. Petitioner alleged that, after the ex-husband learned of decedent’s death, he advised petitioner that “he had in his possession Decedent’s original Last Will and Testament dated July 15, 1996” (emphasis added). Petitioner alleged that, because decedent’s testamentary disposition with respect to the ex-husband had been revoked by operation of law upon their divorce (see EPTL 5-1.4 [a]), he was entitled to decedent’s entire estate as the sole remaining beneficiary of the 1996 will.
Decedent’s parents and brothers (collectively, objectants) objected to probate of the 1996 will, contending, inter alia, that petitioner should be estopped from offering the 1996 will for probate because, despite the provisions in the divorce decree requiring the ex-husband to turn over decedent’s personal effects and associated paperwork, he “wrongfully and fraudulently deprived the decedent of the offered will and the opportunity to access and evaluate the instrument in the context of her divorce.”
The Surrogate denied petitioner’s request for preliminary letters testamentary, but amended the parents’ letters of administration to prohibit the distribution of estate assets. The Surrogate noted that if the 1996 will had been “held by . . . [the] ex-husband, . . . [it] should have been returned to decedent.” The Surrogate further questioned whether “equity prohibit[s] the ex-husband and/or his father from possibly secreting or obtaining the Will via questionable means and then ‘resurrecting’ it by . . . bringing the Will to New York?” Objectants subsequently filed supplemental objections, asserting that decedent executed a second will in 2007, thereby revoking the 1996 will. At the hearing, objectants presented the testimony of decedent’s former neighbor, who testified that she and decedent became very close in 2005 when decedent and the ex-husband
The neighbor testified that the first part of the document
“revoked all previous wills and codicil[s]. This next part of it instructed to pay her debts. The next paragraph was the Executrix who was her mother, Meredith.
“And then the final part of it was that the river house [the New York property] go to her brothers,
. . . and that a small stipend be given to her niece and nephew, . . . maybe five hundred dollars apiece, two hundred dollars apiece, something like that. . . I was struck by that because [decedent] didn’t have two dimes to rub together at the time, but she loved those children.”
The will was signed by decedent and two witnesses, both of whom indicated that they had witnessed decedent sign the document, and there was a raised and embossed notary seal and a notary statement at the end of the document. At decedent’s request, the neighbor stored the will in a file containing other papers belonging to decedent. In August 2009, the neighbor moved from the area and returned to decedent all of her papers, including the will. Finally, the neighbor testified that she was not aware of any contact between petitioner and decedent after the divorce. By contrast, decedent had a close relationship with her father and brothers, who regularly visited her at the New York property.
A tenant who lived with decedent at the New York property from August 2006 until January 2008 testified that he never met petitioner and never heard decedent talk about him, and that he was not aware of any contact between the two. He had met decedent’s parents and brothers, however, and he testified
The main witness on behalf of petitioner was decedent’s former mother-in-law (Mrs. Simmons), who testified that, on July 15, 1996, decedent gave her “the” original 1996 will and “asked [her] to keep it in a safe place.” Mrs. Simmons placed the will “in a dresser drawer and showed [decedent] where [she] put it, so that [decedent] could retrieve it at any time she wished.” Thereafter, decedent never asked for the will and Mrs. Simmons never considered returning it to her. According to Mrs. Simmons, the will remained in her dresser until she learned of decedent’s death in late November 2010. At that point, she “knew [she] had the Will and [she] said we have got to read the Will and see what it says.” When she opened the will, she was “shocked” to learn that petitioner was named therein. Within a few days, the ex-husband “got on the phone ... to try to locate a lawyer.” Neither Mrs. Simmons nor the ex-husband notified decedent’s family of the existence of the will.
The ex-husband testified that, in 1996, he and decedent executed mirror wills, i.e., he left all of his property to decedent and decedent left all of her property to him. At the same time, they each also executed a power of attorney and a health care proxy. According to the ex-husband, they had “four copies of [each of the] six different documents done all on the same day,” and they planned to keep one set at their Texas home, another set at the New York property, another set at his parents’ house, and the final set in a safe deposit box. The ex-husband testified that they had “four sets of everything at each house for a reason,” i.e., “[w]e both traveled. We knew that one house could burn down.” According to the ex-husband, it was not until “the day we dug them out or my mom discovered them after we found out [decedent] had died” that they learned that Mrs. Simmons had “the” original 1996 will. Like Mrs. Simmons, the ex-husband testified that he was “shocked” that petitioner was decedent’s alternate beneficiary. The ex-husband admitted, however, that, after the divorce, he found “[o]ne of [the] four copies” of the 1996 will “in some remaining paperwork” at the Texas property.
Finally, petitioner briefly testified that he was “not the Petitioner,” and that he was “just along for the ride.”
In its decree dated May 18, 2012, the Surrogate found that
Objectants appeal.
II
“It is . . . clear that a paper once duly executed as a will, but which has been expressly revoked by the testator, or which is presumed to have been revoked by the happening of those facts which the law declares shall raise a presumption of revocation, ought not to be admitted to probate. The question of revocation touches the testamentary intent [,] and it is the duty of the [S]urrogate to investigate the question of testamentary intent and to hear all legal proof that may be germane to that question” (Matter of Davis,
In this case, the only direct testimony of decedent’s postdivorce intent, which was expressly credited by the Surrogate, establishes that decedent intended to revoke the 1996 will and to prepare a new instrument devising the New York property, her only significant asset, to her blood relatives. The only question, therefore, is whether decedent in fact revoked the 1996 will in accordance with her undisputed intent.
A will may be revoked by “[a]nother will” or by “[a]n act of
Moreover, where multiple copies of a will are executed, “revocation of one is a revocation of all” (Matter of Betts,
Here, the ex-husband testified with respect to the execution of the 1996 will that he and decedent “had four copies of six different documents done all the same day, four of her will, four of [his] will,” four power of attorney forms, and four health care proxies. He and decedent planned “to leave one set [of each of the six documents] at [the ex-husband’s] parents’ house, one set at [their] Texas house, one set at the New York house and one set in a safe deposit box.” According to the ex-husband, “[t]hat was all planned out before we sat down that day and . . . signed all those signatures” (emphasis added). He and decedent “had four sets of everything” because, among other reasons, they both traveled frequently and “one house could burn down.”
Upon decedent’s death, however, only one of the four copies of the 1996 will was produced — the one possessed by petitioner, the sole remaining beneficiary under the will. Despite an exhaustive search, no will was found in decedent’s New York home or among her personal effects. As the Surrogate noted in his decision, it is not clear from the record whether “decedent and [the ex-husband] left the attorney’s office with four original instruments or one original and three copies.” In my view, that factual uncertainty is fatal to the petition for probate of the 1996 will. As this Court stated many decades ago,
“[t]he authorities are uniform in holding that when it appears . . . that a will was executed in duplicate, one paper cannot be probated without producing the other or accounting for its non-production, the theory being that [a] testator can destroy his [or her] will by destroying the one in his [or her] possession without repossessing and destroying its duplicate” (Robinson,257 App Div at 407 [emphasis added]; see Jacobstein,253 App Div at 461 ; Matter of Flanagan,38 NYS2d 696 , 697-698 [1942]; Schofield,72 Misc at 285-286 ).
Based upon the trial testimony and common sense, it is far more likely that decedent executed four original instruments, and any doubts relative thereto should be resolved against petitioner as proponent of the 1996 will. Mrs. Simmons testified that decedent was “very meticulous about records” and that she “kept records of everything,” yet she claimed that, out of the four locations decedent and her ex-husband selected to store their wills — the Texas house, the New York property, the ex-
Those circumstances are even more suspect in light of the differing accounts of how the 1996 will ended up in petitioner’s possession. The verified petition alleges that, at the time of decedent’s death, the ex-husband “had in his possession [d]ecedent’s original Last Will and Testament dated July 15, 1996.” Objectants thereafter asserted that petitioner should be estopped from offering the 1996 will for probate because the ex-husband withheld it in violation of the divorce decree. After the Surrogate issued a decision stating that if the 1996 will had been “held by . . . [the] ex-husband, . . . [it] should have been returned to decedent,” petitioner’s counsel then advised the court that it was actually petitioner, not the ex-husband, who possessed decedent’s original 1996 will at the time of her death. According to counsel, she
“was told . . . that[,] after [decedent] signed the will, . . . the original was delivered to [petitioner] for safekeeping because [decedent] and [the ex-] husband traveled a lot. And they put a copy in their house in Texas and a copy in their house in New York after they purchased the New York house and there it sat.”
Petitioner’s counsel told the Surrogate that she did not “know why the will was not found after [decedent] died in her home ... I don’t know why even an original wasn’t found after [decedent] died. It was in her — in the safe in her house with her abstract of title” (emphasis and additional emphasis added). At trial, petitioner adhered to his statement in the petition that the ex-husband possessed the original 1996 will at the time of decedent’s death. The ex-husband admitted that he possessed “[o]ne of four copies” of the 1996 will, which he claimed he found after the parties’ divorce among “some remaining paperwork” in the Texas house. He did not return the will to decedent, however, despite the directives in the divorce decree that he return to decedent any of her “personal effects” in his possession or in the Texas house, and that he “deliver to [decedent] all property and/or paperwork associated therewith for any items awarded to [her].”
Significantly, the ex-husband never produced his copy of the 1996 will, and the Surrogate did not direct him to do so. In my view, that was error (see Crossman,
“it [was] established that [decedent] did not have possession of [all] examples or duplicates [of the will] . . . [T]he authentic or the example actually produced for probate was not in [her] custody in [her] lifetime, and no presumption ... is to be drawn from the passive conduct of the testator in respect of that example. [She] may have been of the opinion that its destruction was not necessary to a revocation, or, as [petitioner was] named in the duplicate as [sole] legatee[], [s]he may not have desired [him] to know of the revocation. What [her] thoughts were we do not know and cannot consequently consider” (72 Misc at 285 [emphasis added]; see Hedin,181 Misc at 731 [“Where it is shown, as here, that the decedent had possession of the counterparts and the proponent cannot satisfactorily explain the nonproduction of all such, the presumption of revocation by destruction is operative”]).
I note that, although the majority attempts to cast this critical issue as one of preservation or lack thereof on the part of objectants, it was petitioner’s burden, as proponent of the 1996 will, “to make the proofs essential to its admission to probate” (Matter of Schillinger,
m
Over and above the legal presumption that decedent destroyed the 1996 will with the intention of revoking it (see Staiger, 243
It is not clear whether the lost will was executed in Texas or in New York, although the record suggests that it was executed in Texas. Under Texas law, “a will is valid if it is (1) in writing, (2) signed by the testator, and (3) attested by two or more credible witnesses above the age of fourteen years, who write their signatures in the testator’s presence” (In re Estate of Arrington,
Even assuming, arguendo, that objectants have not proved due execution of the lost will, I conclude that the neighbor’s testimony is sufficient to establish decedent’s revocation of the 1996 will. SCPA 1407 provides that “[a] lost or destroyed will may be admitted to probate only if, [inter alia,] . . . [execution of the will is proved in the manner required for the probate of an existing will” (emphasis added). Here, objectants do not seek to “admit[ ] to probate” the lost will (SCPA 1407). Rather, they seek to establish that decedent revoked the 1996 will by execu
“it is one thing to admit to probate a will disposing of a [person]’s estate where the will cannot be found, and quite another thing to merely establish that a second will, revoking a former will, has been duly made and executed and left in the possession of the decedent. In the one case we are assuming to dispose of property in a manner different from that prescribed by law in the absence of a will, while in the latter case we are merely permitting the property to descend in the manner which the law designates.”
Here, in light of the uncontradicted testimony of decedent’s intent to revoke the 1996 will and her execution of a document effectuating that intent, I would hold that the lost will operated to revoke the 1996 will. I would therefore deny probate of the 1996 will and permit the estate to pass through intestacy (see generally Matter of Hughson,
Finally, I cannot agree with the majority that this Court is “constrained” to conclude as they do. It is well established that “[t]he Surrogate’s Court is a court of equity” (Matter of Dell,
“shall continue to exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents, and ... to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding ... in order to make a full, equitable and complete disposition of the matter by such order or decree as justice requires” (SCPA 201 [3] [emphasis added]).
As one court wrote, “[m]ore comprehensive language could not have been found” (Beall,
In this case, the equities overwhelmingly favor denying probate of the 1996 will and permitting decedent’s estate to pass through intestacy (see SCPA 201 [3]; see generally Latham v Father Divine,
In my view, the testimony of Mrs. Simmons and the ex-husband to the effect that they had forgotten that the 1996 will left everything to the ex-husband or, in the event that he predeceased decedent, to petitioner, and that they were “shocked” to discover that petitioner was the sole beneficiary of decedent’s estate is simply incredible. Indeed, the ex-husband testified that he and decedent executed mirror wills in 1996, and he insisted at trial that it was decedent’s “choice” to select petitioner as the alternate beneficiary. It is thus disingenuous, at best, for him to claim that he was unaware of the contents of the 1996 will. Rather, the record suggests that the ex-husband’s family was fully aware that they possessed an original and at least one copy of the 1996 will and that, despite the divorce, decedent’s relocation to New York, and their knowledge that her health was failing, they made no effort to return the will to its rightful owner, but instead retained possession of the will and resurrected it as soon as they learned of her untimely demise.
It is troubling that it seems apparent from the record that the real party in interest here is the ex-husband, who is legally barred from taking under his former spouse’s will (see EPTL 5-1.4 [a]; Matter of Cullen,
V
In sum, I conclude that objectants established that decedent intended to revoke the 1996 will and that she did in fact revoke that will by operation of the presumption of revocation through destruction and by her subsequent execution of a new testamentary instrument (see Matter of Williams,
Accordingly, I conclude that the objections should be sustained, probate of the 1996 will should be denied, the letters testamentary issued to petitioner should be revoked, and the amended letters of administration issued to decedent’s parents should be reinstated.
Fahey, Lindley and Valentino, JJ., concur with Scudder, EJ.; Peradotto, J., dissents and votes to reverse in a separate opinion.
It is hereby ordered that the decree so appealed from is affirmed without costs.