In re the Estate of DiGiacomo ( 1976 )

Irving A. Green, J.

A petition for the probate of the last will and testament of Mario DiGiacomo has been presented by his former spouse. Petitioner requests the issuance to herself of letters testamentary. The propounded instrument, executed March 5, 1968, bequeaths and devises substantially the entire estate to petitioner, with substitutionary gifts to certain of decedent’s children, and nominates her executrix. A daughter, Gail DiGiacomo Lindemann, is nominated alternate executrix. Thereafter, the parties were divorced by judgment of the Supreme Court, Orange County, dated the 26th day of October, 1973. The decree of divorce revoked any disposition or appointment of property made in the propounded instrument to the former spouse and revoked any provision therein naming the former spouse as executrix. If admitted to probate, the will shall take effect as if such former spouse had died immediately before such testator. (EPTL 5-1.4.)

On the allegations contained in the petition herein, petitioner has no standing to propound the will. (SCPA 1402.) By virtue of EPTL 5-1.4, petitioner is not a person designated in the will as legatee, devisee or fiduciary. Nor is petitioner a person interested as that term is defined as any person entitled either absolutely or contingently to share as beneficiary in the estate. (SCPA 103, subd 36.)

Accordingly, the petition is dismissed without prejudice to a new petition by a proper party.