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Surrogate’s Court dismissed argument that proffered will should be rejected due to execution of later will. Summary judgement. In re the Estate of Wimpfheimer, 8 Misc. 3d 538 (N.Y. Sur. Ct. 2005)


Under New York law, there are multiple ways to revoke a will. The testator can execute a document clearly indicating an intention to revoke the will.  The testator can intentionally destroy the will by ripping it up, burning it, or another action of destruction. Or, the testator can execute a new will. In the case of In re the Estate of Wimpfheimer, there was an objection to probating a 1992 for a number of reasons, including that the testator executed a new will in 2003.

The decedent, Ruth Wimpfheimer, died on February 12, 2003 leaving a probate estate valued at $6,000,000. The only distributees were her daughter and the objectant. The will also establishes a trust that benefits the proponent as well as the decedent’s seven grandchildren. The residuary estate goes to the proponent. The will explicitly limits the amount that the objectant was entitled to the decedent has provided for the objectant’s children during her lifetime and because the objectant would receive future benefits from practicing law in the firm  that the decedent’s husband founded.

The objectant argued against the 1992 will being probated for a number of reasons. One reason was that the decedent executed another will in 2003. The objectant argued that before the court considered whether the 1992 should be probated, it must first determine the validity of the 1992 will.  In other words, the objectant argued that the court must first determine if the 1992 was revoked by the 2003 will.

The objectant contends that the existence of the 2003 will precludes going forward with the proceeding to probate the 1992 will.  The Surrogate’s Court noted that it is accurate that if the 2003 will is valid, the 1992 will would have been revoked.  It would be logical for the court to first determine the validity of the 2003 will before delving into the arguments related to the 1992.  However, that would only be the case if the there was anyone seeking  to have the 2003 will admitted to probate.

However, no interested party has petitioned the court to admit the 2003 will to probate. The 1992 and 2003 are essentially the same. The biggest difference is hat the 2003 does not contain $25,000 legacies for each grandchild.  The two people who have a greater financial interest under the 2003 will specifically stated in writing that they did not seek to probate the 2003 will. Even the objectant stated that the 2003 was just as “despicable” as the 1992. In other words, the objectant would not have a greater financial benefit under the 2003 will versus the 1992 will. Still the objectant argues that the 2003 revoked the 1992 and, therefore, the decedent was intestate.

Despite bringing the 2003 will into his argument as a reason for not probating the decedent’s 1992 will, the objectant also states that belief that the 2003 will is not valid. Clearly, the goal of the objectant was to have the court declare the decedent intestate. Under intestacy, the objectant would financially benefit to a much greater extent than he would under either the 1992 or 2003 wills.

The court concluded that the objectant’s arguments related to the 2003 will should be dismissed as they are inconsistent and untenable.  Furthermore, no interested party, including the objectant, have any interest in probating the will, nor has anyone given a valid reason for probating it. Thus, the court granted summary judgment in favor of the proponent and dismissed the objection that alleged that the 2003 will revoked the propounded will.

The objectant presented several other arguments for not probating the 1992 will. However, the court rejected each one, and granted the proponent’s motion for summary judgement dismissing the objections to probate.


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