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Surrogate Nelida Malave-Gonzalez

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An alleged beneficiary under the will sought to revoke letters testamentary issued to one of decedent’s sons, and for issues of temporary letters to herself. Executor contested petitioner’s status as a beneficiary and her standing to proceed. The court noted the sole issue presented was if petitioner constituted a beneficiary under the will as the surviving spouse of decedent’s predeceased son, Peter, even though she remarried, and divorced by the time of decedent’s death. It answered in the affirmative noting in the underlying probate proceeding, executor listed petition as a residuary legatee and Peter’s surviving spouse. The court ruled the facts warranted the application of the doctrine of judicial estoppel precluding executor from assuming inconsistent positions, noting he now claimed petitioner was not a beneficiary under decedent’s will as Peter’s surviving spouse. Further, it found the unambiguous terms of the will established petitioner’s status as a beneficiary as it provided 75 percent of the residuary was to be shared by decedent’s three sons, or the spouses who survived them, with no alternate disposition in the event of remarriage by the surviving spouse of any predeceased son. Petitioner was a beneficiary under the will with standing to bring the removal action.