While it is clear that the result in this case should be determined by the provisions in the insurance contract, which provides that the "policy shall be construed in accordance with the laws of Delaware”, neither the law of New York, the situs of the present lawsuit, nor the law of Pennsylvania, where the insured died and his will was probated, would alter the outcome.
The majority opinion fairly states the facts in this unfortunate case. In 1973, while married to plaintiff, the insured designated her as the beneficiary of a group life insurance policy issued by Aetna Life Insurance Company.
In 1977, although not legally separated, the deceased was residing in Pennsylvania with his father. He executed a holographic last will and testament, which revoked a prior will leaving his estate to his wife and bequeathed "all my personal belongings, stock certificates, bank accounts, insurance benefits and any other earthly belongings to my father”. The insured died in 1984 at a hospital in Pennsylvania in the vicinity of his father’s home where he had been cared for since moving there in 1977. His father, the interpleaded defendant-appellant herein, was appointed executor of the estate pursuant to the terms of the will when it was probated in Pennsylvania. The plaintiff and the deceased also provided in a 1978 separation agreement, which was incorporated into a 1978 Virginia divorce decree, that plaintiff waived all rights to "the real, personal and mixed property of the husband * * * or estate of the husband * * * excepting only such rights as she may have under this Agreement.”
Although the deceased, despite his debilitating illness, was in communication with his former employer concerning his *219disability payments towards the end of his life, it is undisputed that he took no steps to change his beneficiary under the life insurance policy, which contains the following specific provision with respect to changing beneficiaries: "The amount payable by reason of death of an employee shall be paid to the beneficiary designated by the employee. An employee, whether or not employment shall have terminated, may designate a beneficiary or change his designation of beneficiary from time to time by written request filed at the headquarters of the Policyholder or at the Home Office of the Insurance Company.”
The question presented is whether the general expressions of intent in the separation agreement and will (there are no specific references to the policy in question) can modify the insurance contract’s specific requirement that to "change his designation of beneficiary”, one must do so "by written request filed at the headquarters of the Policyholder or at the Home Office of the Insurance Company.”
The choice of law issues discussed by the majority are of no import inasmuch as all of these jurisdictions require substantial compliance with the terms of the insurance contract to change beneficiaries. The change must be effected pursuant to the terms of the contract or there must be evidence that the insured took substantial steps with respect to the specific insurance contract to achieve the change of beneficiary. The policy reason for this approach is clear; any other result would involve rank speculation about the intentions of a deceased who is no longer available to speak.
The rule in Delaware is longstanding: to change a designated beneficiary it must be demonstrated that the insured had done all that was reasonably possible to show his intention to name another beneficiary of the policy proceeds (Carpenter v Greene, 396 A2d 150, 152 [Del]). The result in Carpenter v Greene, depriving the named beneficiary wife of the proceeds, did not alter the general rule. There, the deceased Mr. Greene was involved in a matrimonial dispute and called the insurance company’s agent with "the explicit purpose of changing the beneficiary from Mrs. Greene” (supra, at 152). He was incorrectly informed by the insurer’s agent that his business partner and not Mrs. Greene was the beneficiary and decided to " 'leave it that way’ ” (supra, at 151). The court found that the deceased relied on the insurer’s agent and had done all he could reasonably do to effect a change in beneficiary.
In this case, the insured died in Pennsylvania where his will was probated. As noted, the will provided, inter alia, that "all *220my * * * insurance benefits” should go to his father. Under Pennsylvania law, the general bequest of all insurance in a decedent’s will does not change a prior designation of a beneficiary on the policy, absent proof that the decedent had. done all that he reasonably could have done to change the designation (Carruthers v $21,000, 290 Pa Super 54, 434 A2d 125). As in New York, the designation of life insurance beneficiary is not a testamentary "conveyance” under Pennsylvania law (20 Pa Cons Stat Annot § 6101 et seq.). Similarly, the execution of a comprehensive property settlement agreement is not sufficient to deprive the policy’s designated beneficiary of her rights unless the facts established that she expressly waived her rights to the insurance policy’s benefits under the agreement (Equitable Life Assur. Socy. v Stitzel, 299 Pa Super 199, 203, 445 A2d 523, 525). Here, in plaintiff’s separation agreement with the insured, plaintiff merely waived her rights to "the real, personal and mixed property of the husband * * * or estate of the husband.” There was no reference to insurance or the policy in question.
EPTL 3-5.1 (b) (2) provides that "[t]he intrinsic validity, effect, revocation or alteration of a testamentary disposition of personal property, and the manner in which such property devolves when not disposed of by will, are determined by the law of the jurisdiction in which the decedent was domiciled at death.” Since the insured was domiciled at death in Pennsylvania, his holographic will probated in Pennsylvania during the pendency of this action should be construed in accordance with the law of Pennsylvania. However, even if the law of New York controlled, as the majority contends, the result would not be otherwise. While in New York "it is possible to effect a change of beneficiaries without strict compliance with policy provisions * * * some affirmative act on the part of the insured to accomplish the change is required; mere intent to make a change is not sufficient.” (Hunnell v Hunnell, 45 AD2d 521, 523, affd 37 NY2d 931 [citations omitted and emphasis added].)
Kane v Union Mut. Life Ins. Co. (84 AD2d 148, appeal dismissed 57 NY2d 956) dealt with the very issue presented here—the power of a will provision to change a designated insurance beneficiary—stating: "The validity of a provision in a will purporting to change the designation of the beneficiary of an annuity depends upon whether such a mode of change is expressly or impliedly authorized by the policy. Although it has been stated that 'the power to change the beneficiary [of an insurance policy] cannot ordinarily be exercised by will’ *221* * * that statement means only that the provisions in an insurance contract regulating the manner in which a beneficiary may be changed are not 'ordinarily’ satisfied by a testamentary disposition * * * This is so because the relevant provisions of the insurance contract either expressly prohibit a change in beneficiary by testamentary disposition or impliedly prevent such mode of change by setting forth conditions to effect the change which cannot be met by a mere statement in a will.” (84 AD2d, supra, at 151-152 [citations omitted].)
The test is "whether the will of the decedent 'clearly manifested [his] intent’ to change the beneficiaries of the annuity policy in question” (supra, at 154). The Court held that even though the testator bequeathed to the plaintiff " 'any interest or rights I may have with respect to any Keogh Plan and/or Annuity’ ”, "the language of the testamentary clause [did] not sufficiently identify, and indicate that it was intended to affect, the subject annuity contract” (supra, at 154). In our case, while there is a reference in the holographic will to "all my * * * insurance benefits”, there was no reference to the specific policy in question even by words such as "my life insurance policy”, etc.
Aetna Life Ins. Co. v Sterling (15 AD2d 334, affd 11 NY2d 959), relied upon by the majority in support of New York’s purported abandonment of a " 'substantial compliance’ ” rule in favor of an "equitable approach”, hardly supports such a proposition; in fact, Aetna firmly reiterates that mere intent and general intent to change are insufficient: "It is true that, where no issue exists between the insurer and the claimed beneficiary, the terms or conditions of the policy in regard to change of beneficiary need not be complied with * * *. This does not mean that in any situation where the insurer declines to choose between rival claimants and pays the proceeds into court the court should make a disposition based on which of them the court finds that the deceased would have preferred to receive the proceeds. There must be an act or acts designed for the purpose of making the change, though they may fall short of accomplishing it. Mere intent is not enough * * *. Here, the deceased made no effort to change the certificate. What she did was to name a different beneficiary for a different policy, which would replace the certificate. In the light of her acts, speculation on her general intent is neither profitable nor permissible.” (Supra, at 335 [citations omitted and emphasis added].)
It is not our function to make new contracts for the parties, but to enforce the agreement the parties entered into. Accordingly, the order appealed from should be affirmed.
*222Wallach and Rubin, JJ., concur with Tom, J.; Sullivan, J. P., and Andrias, J., dissent in a separate opinion by AnDRIAS, J.
Order, Appellate Term, Supreme Court, First Department, entered August 10, 1995, which affirmed an order and judgment (one paper) of the Civil Court, New York County, entered October 18, 1993, reversed, on the law and facts, without costs, and the interpleader plaintiff is directed to pay the proceeds plus interest to interpleaded defendant-appellant.