Opinion
April 15, 1968
Friedman, Marx Handler for petitioner.
John G. Trapani, guardian ad litem.
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 G. 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 the 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.