
    In the Matter of the Estate of Earl J. Coffed, Jr., Deceased. David E. Coffed, Appellant; Edwin Waley, Jr., Respondent.
    Argued January 9, 1979;
    decided March 20, 1979
    
      POINTS OF COUNSEL
    
      Norman A. Le Blanc for appellant.
    I. It is respectfully submitted that while the instant proceeding is not technically a will construction proceeding, certain principles applicable in construction proceedings should be followed in the instant case. It is necessary and important that a determination be made as to the intention of the deceased and Dessie at the time they executed the wills and agreements on September 22, 1971. It is necessary to determine their intention at that point, so their subsequent acts may be properly analyzed. New York courts have consistently held the cardinal principle of construction to be to determine the intention of the testator. It is respectfully submitted that the intention of the deceased at the time he executed the will and agreement is of the utmost importance to the proper determination of the issues presented in this proceeding. (Matter of Fabbri, 2 NY2d 236; Robinson v Martin, 200 NY 159; Matter of Lorberbaum, 35 Misc 2d 647; Matter of Day, 10 AD2d 220; Matter of Hollister, 18 NY2d 281; Cooke v Cooke, 2 AD2d 128, 810; Matter of Lampshire, 57 Misc 2d 332; Matter of Sharinay, 58 Misc 2d 334; Matter of Silverman, 43 Misc 2d 909; Oursler v Armstrong, 10 NY2d 385.) II. Respondent, before the court below, argued that the sole method prescribed for the revocation of wills is to be found in EPTL 3-4.1. He further argued that a divorce accompanied by execution of mutual general releases is not sufficient to satisfy the provisions of this statute. However, EPTL 3-4.1 has been held not to be the sole method by which revocation may be effected. These wills should be considered as revoked through the execution of the general releases under the provisions of EPTL 3-4.3. (Matter of Hollister, 18 NY2d 281.) III. If the Court of Appeals does not wish to extend the rule of Hollister to the facts of the instant situation and find a revocation pursuant to the provisions of EPTL 3-4.3, then it is respectfully submitted that, in the alternative, this will be considered realistically a contract, and that the parties by execution of the mutual releases, rescinded the contract which, by its own terms, incorporates the wills. Rescission of contracts between parties is a clearly recognized legal doctrine, and should be extended to a situation such as that presented in the instant case. (Rill v Darling, 21 AD2d 955; Kauffman v American Youth Hostels, 6 AD2d 223; Matter of De Masi, 10 Misc 2d 308; Matter of Ohrbach, 4 Misc 2d 964; Oliphant v New York Yankees, 42 Misc 2d 394; Cahill v Regan, 5 NY2d 292; Connell v Bradt, 36 Misc 2d 515; Matter of NTA, Inc. [Tableau Tele.], 11 Mise 2d 333, 8 AD2d 799; Meil v Syracuse Constructors, 42 Misc 2d 39; E. T. C. Corp. v Title Guar. & Trust Co., 271 NY 124.) IV. The decision of the court below will result in the unjust enrichment of respondent herein. As an alternative to finding the rescission or revocation of the wills and contracts of September 22, 1971, it was urged before the court below that the rules involving the law of constructive trusts be extended to this situation. The court rejected both alternatives proffered by appellant, and as a result totally thwarted the estate plans entered into by these parties at the time of the execution of the wills. It is respectfully submitted that the conclusion of the court below is totally capricious and arbitrary, totally contrary to any estate plan envisioned by the parties, and unjustly enriches respondent herein. (Matter of Phillips, 10 Misc 2d 714; Bradkin v Leverton, 26 NY2d 192; Miller v Schloss, 218 NY 400; Pink v Title Guar. & Trust Co., 274 NY 167.)
    
      Leonard W. M. Zingler for respondent.
    I. A husband’s contractually reciprocal will is not impliedly revoked by reason of divorce and exchange of general releases. (Matter of Lewis, 79 Misc 2d 610; Matter of White, 82 Misc 2d 323; Matter of North, 32 AD2d 862; Matter of Ruark, 35 AD2d 920; Matter of Hollister, 18 NY2d 281; Matter of McGill, 229 NY 405; Lovell v Quitman, 88 NY 377; Burnham v Comfort, 108 NY 535.) II. Although a divorced spouse does not take under the ex-husband’s contractual reciprocal will, the will is entitled to probate and the contingent provisions should be carried out. (Matter of Lampshire, 57 Misc 2d 332; Matter of Sharinay, 58 Misc 2d 334; Matter of Hollister, 18 NY2d 281; Matter of Lamedrin, 157 Misc 431; Matter of Tremaine, 282 NY 485.) III. The burden of proving revocation of a will is upon the contestant. (Matter of Bonner, 46 Misc 2d 294, 17 NY2d 9; Matter of Mack, 39 Misc 2d 889, 21 AD2d 205; Matter of Crouse, 205 App Div 135, 238 NY 583; Matter of Thomas, 216 NY 426; Matter of Schinasi, 277 NY 252, 278 NY 624; Patrolmen’s Benevolent Assn. of City of N. Y. v City of New York, 41 NY2d 205.)
   OPINION OF THE COURT

Chief Judge Cooke.

Presented for review is the question whether a "reciprocal” will is revoked by a general release which discharges the testator’s contractual obligation to execute such a will. An ancillary issue concerns whether a testamentary disposition may be impliedly abrogated by a document which does not comply with the formalities prescribed by EPTL 3-4.1.

A contract obligating an individual to execute a reciprocal will is analytically distinct from the will itself, and we hold that a release or discharge of the contractual duty, without more, does not work a revocation of the will. In a similar vein, an instrument which does not satisfy the strictures of EPTL 3-4.1 may not, at least in the circumstances of the present case, be deemed to revoke by implication an otherwise valid bequest.

Earl J. Coffed, Jr., the decedent, and Bessie M. Waley were married in July, 1971. As a result of previous marriages to others, Bessie had a son, Edwin Waley, Jr., while Earl had three children. Shortly after their marriage, Earl and Bessie entered into a contract whereby they agreed to execute reciprocal wills which would pass the estate assets of the first deceased to the survivor. The wills also were to provide for disposition of an equal portion of the estates to each of the four children upon the death of the survivor or the simultaneous death of both husband and wife. Finally, the parties agreed not to "revoke or change or in any way modify the will as reciprocally drawn”.

Unhappily, the bonds of matrimony were severed late in 1973 when Bessie obtained a default divorce decree. Some three months later, in the course of effecting a modification to the decree, the parties mutually released all claims of any nature which they might have against each other.

Earl Coffed, Jr., died on May 28, 1976. His will, which had remained unchanged since he executed it pursuant to the contract in 1971, was offered for probate by Edwin Waley, Jr. Bavid Coffed, one of Earl’s three children, filed objections, and this proceeding ensued.

The Surrogate, relying upon the presumed intention of Earl Coffed, ruled that the will should not be probated. Moreover, the Surrogate concluded that EPTL 5-1.4, which upon a divorce automatically revokes a prior testamentary provision for a spouse, was inapplicable to the present circumstances. A unanimous Appellate Bivision reversed the decree of the Surrogate. We now affirm the order of the Appellate Bivision.

Reciprocal and joint wills, which are essentially a species of the more inclusive category of contracts to make testamentary provisions, are not unfamiliar to our law (see 9B Rohan, NY Civ Prac, par 13-2.1 [8]). So long as certain prerequisites are met, a contract requiring the execution of a joint or reciprocal will is legally enforceable (see, generally, Rich v Mottek, 11 NY2d 90; EPTL 13-2.1). Upon the death of a party who has complied with the contractual provisions, the agreement is no longer executory and will be specifically enforced

in equity (see, e.g., Lally v Cronen, 247 NY 58, 62-63; Rastetter v Hoenninger, 214 NY 66, 71). Absent such an obligation, of course, and subject to applicable statutory and decisional law, an individual may make or revoke testamentary provisions at his pleasure (see, e.g., Lally v Cronen, supra, at p 62).

Conceptually, the contract to make a testamentary provision is separate and distinct from the will itself. While the contract might be enforceable in equity, from a technical standpoint it has no effect upon the will’s status as a legal instrument. Thus, this court has previously held that a document purporting to be a will may not be denied probate merely because the testator "bound himself to a different disposition of [his] property by contract” (Matter of Higgins, 264 NY 226, 229; see, also, Matter of Davis, 182 NY 468).

It follows that the release of a contractual duty requiring a particular testamentary disposition, by itself, has no impact upon an existing will. True, the parties are no longer bound to comply with the agreement’s strictures, and equity will no longer enforce the disposition called for by the contract. But the existing wills, whether they are consistent with the contractual requirements or not, subsist and remain unaffected.

To reach a contrary conclusion would be to undermine the rigorous, but necessary, statutory provisions relating to revocation of wills. With few exceptions not here relevant, the exclusive mechanism for revocation of a testamentary instrument is contained in EPTL 3-4.1. That section wisely requires that a revocatory instrument be executed with the same formalities as those needed to make a valid will. A less stringent provision would open the door to the dual evils of fraud and perjury (cf. Matter of Tremain, 282 NY 485, 486-487, 490), and perhaps fail to impress upon the mind of the testator the solemnity of the occasion. Consequently, the conclusion is inescapable that the general release signed by decedent, which concededly does not satisfy EPTL 3-4.1, did not work a revocation of the existing reciprocal will.

Nor was decedent’s will impliedly revoked by virtue of the principle enunciated in Matter of Hollister (18 NY2d 281). In Hollister, this court, construing section 40 of the Decedent Estate Law, held that a subsequent separation agreement which is "wholly inconsistent” with a testamentary disposition to a spouse works a revocation of that disposition (Matter of Hollister, supra, at pp 286-287). Strictly speaking, that precise holding is inapplicable to the present case, inasmuch as the bequest to the wife has been automatically revoked by divorce. Moreover, the boilerplate language in the release executed by this decedent does not approach the more specific language found "wholly inconsistent” in Hollister (see 18 NY2d, at p 286).

But all of this assumes that the rule stated in Hollister continues to represent the law of this State. Although we do not today decide the question, we note that the viability of that case may be in doubt. The specific problem addressed in Hollister, concerning the effect of a subsequent separation or divorce upon an existing disposition to a spouse, has since become a topic of legislative consideration and action (see EPTL 5-1.4; Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Report No. 8.25A, NY Legis Doc, 1966, No. 19, pp 702-804, esp p 782). In view of this legislative action, further development in the area might well be precluded. Because Hollister is clearly distinguishable from the present case, however, we need not now grapple with this question.

Accordingly, the order of the Appellate Division should be affirmed, with costs to all parties appearing separately payable out of the estate.

Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur with Chief Judge Cooke.

Order affirmed, etc. 
      
      . EPTL 5-1.4 provides: "If, after executing a will, the testator is divorced * * * the divorce * * * revokes any disposition or appointment of property made by the will to the former spouse.” We find no obstacle to the application of this provision here. This section is "new” and effects a substantial change in New York law in respect to revocation of wills (L 1966, ch 952, eff Sept. 1, 1967, as amd by L 1969, ch 805, eff Sept. 1, 1969; see Hoffman, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, § 5-1.4, p 727).
     
      
      . Section 40 of the Decedent Estate Law was incorporated into the EPTL and is now contained in EPTL 3-4.3. We note that the language of the EPTL provision differs from that of its predecessor, but need not reach the question whether the new wording has altered the substantive effect of the provision.
     