## Facts

- A decedent who was not a Kentucky resident executed a will in another state.
- At the time of execution, the will met the requirements that would have allowed it to pass title to real estate located in Kentucky.
- After executing the will, the decedent obtained a divorce.
- Under Kentucky law, divorce revokes a will (KRS 394.095).
- Following the decedent’s death, an authenticated copy of the foreign will and its foreign probate were presented in a Kentucky court under Kentucky’s statute governing probate of nonresidents’ wills (KRS 394.150, in its pre-1972 form).
- The Kentucky trial court ordered the foreign will admitted to probate in Kentucky in a manner that would effect transfers of both (a) Kentucky personal property and (b) Kentucky real estate.
- A party opposing use of the will to transfer Kentucky property appealed, arguing that because the will was revoked by divorce under Kentucky law, it could not be effective in Kentucky—at least as to Kentucky real property.

## Issues

1. Whether a nonresident’s foreign will that is revoked by divorce under KRS 394.095 may be probated in Kentucky under the pre-1972 version of KRS 394.150 to transfer title to Kentucky real estate.
2. Whether that foreign will may still be admitted to probate in Kentucky to dispose of Kentucky personal property.

## Decision

- The Kentucky Court of Appeals held that the will could not be probated in Kentucky for the purpose of transferring Kentucky real estate because, under Kentucky law, the will had been revoked by the testator’s divorce.
- The court allowed probate of the will as to Kentucky personal property.
- The judgment was affirmed in part (personalty) and reversed in part (realty).

## Legal Principles

- Under KRS 394.095, a testator’s divorce revokes the testator’s will under Kentucky law.
- Under the pre-1972 version of KRS 394.150, a Kentucky court addressing a foreign-probated nonresident’s will treated personal property and Kentucky real property differently, with stricter limits on using the foreign will to affect title to Kentucky land.
- For Kentucky real estate, Kentucky courts could require that the foreign will be one that could have been admitted to probate under Kentucky law; a will revoked under Kentucky’s revocation-by-divorce statute fails that requirement.
- A foreign probate may still be given effect for disposition of personal property even when the will is not effective to transfer Kentucky real estate, depending on the statutory scheme in force at the time of the proceedings.

## Conclusion

Cox v. Harrison held that, under Kentucky’s then-governing statutes, a nonresident’s will that Kentucky law treated as revoked by divorce could not be admitted in Kentucky to transfer title to Kentucky real estate, even though the foreign probate could be recognized for purposes of distributing Kentucky personal property; the court therefore affirmed the probate order as to personalty and reversed it as to realty.


Cox v. Harrison, 535 S.W.2d 78 (1975)