Estate of Knospe, Matter of

• Decision Date: 25 April 1995
• Citation: 165 Misc.2d 45,626 N.Y.S.2d 701
• Parties: In the Matter of the ESTATE OF Emil E. KNOSPE, Deceased. Surrogate's Court, Erie County
• Court: New York Surrogate Court

Page 701

626 N.Y.S.2d 701

165 Misc.2d 45

In the Matter of the ESTATE OF Emil E. KNOSPE, Deceased.

Surrogate's Court, Erie County April 25, 1995.

Julie Falvey, Buffalo, for petitioner, Kathleen B. Knospe.

Zdarsky, Sawicki & Agostinelli by K. Michael Sawicki, Buffalo, for respondent/cross-petitioners, Warren Knospe and Brian Knospe.

Maryann Saccomando Freedman, Buffalo, guardian ad litem.

JOSEPH S. MATTINA, Surrogate.

This matter was brought before the court by the petition of Kathleen Blatter Knospe, former wife of Emil E. Knospe and the executrix and sole beneficiary under his Will, for probate of that Will. Objections to probate were filed by Warren Knospe and Brian Knospe, adult children of the decedent. Arguing that the Will's material provisions were revoked by the parties' divorce, the respondents sought a determination that the estate would pass by intestacy and requested the appointment of Warren Knospe as personal representative. The respondents subsequently moved for summary judgment, on the grounds that the facts were indisputable and uncontroverted. The guardian ad litem appointed to represent the decedent's two infant children also objected to probate. After hearing oral argument and receiving the written submissions of the parties, this court reserved decision.

Emil E. Knospe died on July 23, 1994, leaving a Will dated January 21, 1982. The Will bequeaths the decedent's entire estate to petitioner Kathleen Blatter Knospe (referred to in the Will as Kathleen M. Blatter) and nominates her executrix. There are no contingent beneficiaries and no successor fiduciaries named. At the time he executed the Will, the decedent had two children by his first wife, respondents herein. He was not yet married to the petitioner. The Will gives no indication that the bequest of the entire estate was made in contemplation of the parties' marriage. Nine months after signing the Will, on October 16, 1982, the decedent married the petitioner. Two children were born of this union, the infants represented by the guardian ad litem. On April 14, 1994, petitioner obtained a judgment of divorce from the decedent, which incorporated an oral stipulation resolving all issues of maintenance, custody, visitation, and child support. Pursuant to the stipulation, petitioner was to receive maintenance for a specified period and a distributive award representing her interest in the marital property, including their residence. The stipulation did not include a waiver and contained no reference to inheritance rights of the parties. The decedent did not change his Will prior to his death, which occurred suddenly, some three months after the divorce.

This is a case of first impression in New York. It involves the determination of whether a Will's execution before the parties' marriage insulates any provisions in favor of the divorced spouse from the revocatory effect of EPTL § 5-1.4. The statute provides, in pertinent part, for the revocation of both a testamentary gift to a divorced spouse and the nomination of that former spouse as fiduciary:

(a) If, after executing a will, the testator is divorced, his marriage is annulled or its nullity declared or such marriage is dissolved on the ground of absence, the divorce, annulment, declaration of nullity or dissolution 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, and the provisions, dispositions and appointments made in such will shall take effect as if such former spouse had died immediately before such testator.

If a provision, disposition or appointment is revoked solely by this section, it shall be revived by testator's remarriage to the former spouse.

Petitioner concedes that EPTL 5-1.4 revokes by operation of law any testamentary provision for a divorced spouse made during the parties' marriage, but argues that the statute is inapplicable to the case before us because the Will in question was executed before marriage, while the petitioner and decedent were friends. She points out that during their almost two-year matrimonial action, not only did the decedent not change his Will, but he even named the petitioner as trustee of the proceeds of a life insurance policy for the benefit of his minor sons and the contingent beneficiary on that policy. The petitioner finds these facts evidence of an unaltered intent to benefit her despite the termination of their marriage.

Respondents claim that EPTL 5-1.4, by its literal terms, revokes the testamentary provisions leaving the decedent's entire estate to petitioner and naming her executrix. They point out that, according to the statute, only an explicit direction in the Will that the bequest is meant to survive the divorce will negate the revocation. Respondents argue that because the statute creates a conclusive presumption, unrebuttable by contrary evidence, the court should not consider petitioner's extrinsic evidence of the decedent's intent. In the alternative, however, they call to the court's attention the bitter, adversarial nature of the parties' divorce proceedings and the decedent's vow to fight any required payments to petitioner, which, they say, render inconceivable the notion that he would have wished to continue to benefit her under his Will.

The guardian ad litem's written submissions note that under the literal language of EPTL 5-1.4, a divorce after the execution of a Will is all that is required to effect a revocation of provisions in favor of a former spouse. She seeks a determination that, should the court rule the spousal provisions of the Will ineffective, with intestacy the result, the estate will be shared equally by the decedent's four surviving children, who include her infant wards. She further requests that if the court appoints one of the respondents to administer the estate, he be required to post a bond.

We must interpret EPTL 5-1.4, then, in light of a novel set of facts: the testator's execution of a Will conferring substantial benefit on his spouse before his marriage to her. No New York court has heretofore been asked to determine whether EPTL 5-1.4's operation presupposes a marital relationship at the time of the Will's execution or, put another way, whether the sequence of the marriage and the Will execution are at all significant in determining the statute's applicability. We believe, however, that though the question before us may be new to this jurisdiction, the answer, based on the language of the statute itself, its legislative history, and the decisions of sister states in analogous cases, is quite clear.

We look first at the language of EPTL 5-1.4 itself, which we find to be plain and unambiguous. It states very emphatically that if, after executing a Will, the testator is divorced, the divorce revokes any testamentary disposition to the former spouse or any provision naming her as executor. The statute's scope is undeniably categorical: it applies to all situations in which a divorce follows the execution of a Will. And its effect is automatic: it revokes any testamentary disposition to, or fiduciary nomination of, a person from whom the testator is subsequently divorced. Moreover, EPTL 5-1.4 sets forth only two means by which its operation can be avoided: an express provision in the Will that the disposition or appointment is valid despite the divorce and a revival of the disposition or appointment by remarriage to the former spouse-beneficiary.

By its own terms, then, the statute's effect is not limited to the revocation of provisions in favor of a spouse under a Will executed during marriage. The operative sequence of events is the execution of a Will followed by the divorce from the spouse-beneficiary or spouse-fiduciary. Whether that spouse had the status of "friend" rather than wife (as is the situation in the case before us) at the time of the Will's execution is irrelevant. What is significant is that, as of the date the Will speaks (the testator's death), she is a former spouse (by virtue, in our case, first of her marriage to, and then divorce from, the decedent). Petitioner thus is on the same footing (former spouse-beneficiary-executor) as all others affected by the statute. Neither of the two exceptions set forth in EPTL 5-1.4 applies in the instant case. It is uncontested that the decedent never took the requisite affirmative action to declare expressly in a new testamentary instrument that he wanted petitioner to receive his estate despite the termination of their marriage or to revive the original bequest by remarriage to her.

The legislative history of EPTL 5-1.4, we think, supports the conclusion that the sequence of marriage and Will execution is not relevant to a determination of the statute's applicability. Prior to the enactment of EPTL 5-1.4, New York law provided that a Will could only be revoked by various physical acts, such as tearing, burning, or obliterating. Our courts consistently held that the means enumerated in the statute were exclusive and thus that the doctrine of implied revocation of a testamentary instrument was not triggered by the change of circumstances occasioned by divorce. As the Queen's County Surrogate's Court held in Matter of Sussdorff, 182 Misc. 69, 70-71, 43 N.Y.S.2d 760 [1943], "The divorce obtained by the legatee does not, expressly or impliedly, revoke, alter or destroy the testamentary provision made for her in testator's will," since an effective revocation can only be made pursuant to the statute, which "neither mentions divorce nor provides that it shall have any effect on the will of a spouse previously executed."

As part of its sweeping revision of New York estates law, the Bennett Commission recommended a radical change in the law concerning the effect of divorce on a testamentary provision for a spouse. The Commission believed that the case law h...