In In re Grutzner, 2015 N.Y. Misc. Lexis 744 (N.Y. Sur. Ct. Mar. 17, 2015), decedent, Dorothy Grutzner ("Dorothy"), executed a last will and testament in which she explicitly disinherited her son and granted her daughter a life estate in her home. Pursuant to the terms of Dorothy's will, if Dorothy's daughter pre-deceased Dorothy, Dorothy's home and the residue of Dorothy's estate were to pass to a trust. Dorothy's daughter predeceased her, and the trust referenced in Dorothy's will could not be located. The administrator argued that in the absence of the trust, the residuary, including Dorothy's home, should pass via intestacy to Dorothy's descendants, excluding Dorothy's son, who was unambiguously disinherited under Dorothy's will. Dorothy's son argued that he should inherit under Dorothy's will because Dorothy did not intend to disinherit him totally in the event Dorothy's daughter passed away first.
The Surrogate's Court agreed with the administrator. The court noted that language in a will explicitly barring a person from inheriting under the will also bars that person from sharing in any disposition that lapses into intestacy, stating: "[a] decedent's intentions are ascertained as of the date the will was executed, not a subsequent date, and a court cannot change the will to carry out what it assumes the testator would have wanted had she envisioned the state of events at her death."