In re the Estate of Lake
560 N.Y.S.2d 966, 1990 N.Y. Misc. LEXIS 506, 148 Misc.2d 569 (1990)
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Rule of Law:
A duly executed codicil revokes inconsistent provisions of a will at the moment of execution, even if the codicil itself is later revoked and denied probate. If such a codicil introduces an additional pre-residuary bequest not in the original will, and is subsequently revoked, that bequest passes as intestate property; however, if the codicil revokes an existing pre-residuary bequest in the will, that bequest passes under the will's residuary clause.
Facts:
- On August 19, 1984, Lea Lake executed a will, which included specific bequests: real property at 527 68th Street, Brooklyn, to Lois Jayne Bobe (Article Fifth); $1,000 to David Levandowski (Article Eighth); and the residue of her estate to her sister Queenie McFarland (Article Eleventh).
- On May 15, 1985, Lea Lake executed a codicil that was duly witnessed and executed while she was competent and free from restraint.
- The codicil made several changes: its Article Third eliminated the real property bequest to Lois Jayne Bobe (Article Fifth of will) and instead bequeathed the same property to David Levandowski; its Article Fourth eliminated the $1,000 bequest to David Levandowski (Article Eighth of will); and its Article Second introduced a new $5,000 bequest to Alma Marx, who was not mentioned in the original will.
- Lea Lake died on April 24, 1988, and after her death, the original codicil could not be found.
Procedural Posture:
- Lea Lake died on April 24, 1988.
- Lea Lake's will was duly admitted to probate by decree of the Surrogate's Court, Kings County, dated February 21, 1990.
- A conformed copy of the codicil was produced to the Surrogate's Court.
- The Surrogate's Court denied probate of the conformed copy of the codicil because the original could not be located after Lea Lake's death, and petitioners were unable to overcome the presumption that Lea Lake had destroyed the codicil during her lifetime.
- A construction proceeding was initiated in the Surrogate's Court to determine the legal effect of the revoked but duly executed codicil on the provisions of the probated will.
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Issue:
Does a duly executed codicil that is later revoked and denied probate nonetheless revoke specific provisions of a validly probated will, and if so, how should the property from those revoked provisions be distributed?
Opinions:
Majority - Bernard M. Bloom, S.
Yes, a duly executed codicil, even if later revoked and denied probate, effectively revokes specific provisions of a validly probated will, and the disposition of property from those revoked provisions depends on the nature of the bequest. The court reasoned that, under New York law, a codicil proven to be duly executed operates to revoke affected provisions of the will at the moment of its execution, regardless of whether the codicil itself is admitted to probate, citing Osburn v Rochester Trust & Safe Deposit Co. The subsequent revocation of the codicil does not revive the provisions of the will that were revoked by the codicil's execution; revival requires a new will or republication conforming to statutory formalities (EPTL 3-4.6; Osburn). Regarding the disposition of revoked bequests, the court distinguished between different types: if the codicil introduces an additional pre-residuary bequest not otherwise mentioned in the will, and is subsequently revoked, that bequest passes as intestate property (as established in Osburn), which prevents the revival of the will's residuary estate. However, if the codicil revokes existing pre-residuary bequests already contained in the will, those bequests pass under the residuary clause of the will; the court reasoned this approach ensures the revoked pre-residuary bequests are not given effect and does not revive them, thus explicating the reasoning of Osburn. Applying these rules, the $5,000 additional bequest to Alma Marx (Article Second of codicil) passes in intestacy. The $1,000 pre-residuary bequest to David Levandowski (Article Eighth of will) and the real property bequest to Lois Jayne Bobe (Article Fifth of will), both eliminated by the codicil, pass under the residuary clause of the will (Article Eleventh).
Analysis:
This case clarifies the complex interplay between a will, a codicil, and the finality of testamentary acts in New York law. It reinforces the principle that a validly executed codicil irrevocably alters a will at the moment of execution, even if the codicil itself is later revoked or lost and thus denied probate. The significant contribution is the distinction in how different types of revoked bequests are distributed: new bequests introduced by a revoked codicil fall into intestacy, while existing bequests in the original will that were merely redirected or cancelled by the codicil revert to the residuary estate. This nuanced approach impacts how testators' intentions are interpreted and how estates are distributed, emphasizing the finality of codicil execution for revocatory purposes and preventing unintended revival of prior will provisions.
