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September 2, 2020

What Happens When You Revoke a Last Will and Testament in New York State?

What Happens When You Revoke a Last Will and Testament in New York State?

In response to changes in the law and family circumstances, many people find themselves executing more than one will throughout their lifetime. In fact, it’s in a client’s best interests to regularly review and update their estate planning documents as needed.

Consequently, confusion can arise regarding the effects of revoking an existing will. Does the penultimate will control the disposition of a client’s assets, or does the revocation of a will result in asset distribution by means of the laws of intestacy (i.e., as if the decedent died without a will)? This widespread uncertainty emphasizes the importance of understanding the consequences of revoking an existing will as an essential facet of strategic estate planning.

Though it’s possible to revoke a will by explicitly writing “revoked” on the instrument or by means of a physical act (e.g.., burning, tearing, or some other manner of destruction), the safest and most transparent revocation method is to properly execute a new will that explicitly invalidates or cancels any prior testamentary instrument. However, what happens if a will is revoked and a new will is never executed or is executed improperly? Is the prior will revived or would the decedent’s estate pass by means of intestacy?

Under many of these scenarios, the application of NYS law would result in the client’s assets passing by means of intestacy; the testator’s previous will would not be revived. Simply put, the client’s estate would be treated as though they never executed any wills. However, there are instances in which a prior will is revived upon the revocation of a later-dated instrument. According to EPTL § 3-4.6, there are only three available methods of reviving a prior will:

  1. Re-executing the prior will
  2. Executing a codicil (i.e., a will supplement) specifically incorporating the prior will by reference, whether partially or in its entirety
  3. Executing a writing declaring the revival of the prior will

Each of these revival methods requires that the formalities of a will ceremony have taken place (e.g., at least two witnesses, etc.) and that the testator has sufficient capacity to complete the execution.

In addition, the doctrine of dependent relative revocation (DRR), a common-law exception to the statutory rule implemented by EPTL § 3-4.6, has been employed by some NYS courts under circumstances where a testator revokes a prior will in a new instrument, but the new instrument is found to be invalid for one reason or another (e.g., insufficient testamentary capacity, improper will ceremony, etc.) and the testator dies before rectifying the error. In this type of situation, DRR would allow for the revival of a prior will under the theory that the revocation of the prior will was conditional upon the execution of new will.

Therefore, the intent of the testator is paramount, and it’s assumed the decedent would’ve preferred for the assets of the estate to pass as provided in a prior will rather than through intestacy. If the new will that contained a revocation of the old will was flawed, through DRR, a judge can find that the testator’s intention was only to revoke the old will if the new will was valid. Since the new will is not valid, the theory goes that the old will cannot necessarily have been revoked by an invalid will.

Consider this real-life example: a testator executes a will leaving his estate, in equal shares, to his biological child and his stepchildren. The testator later revokes his will by ripping it up in the presence of his attorney and subsequently dies without ever executing a new will. The biological child petitions the court for letters of administration, stating he’s a sole distributee and he used “due diligence” to determine that the decedent left no will. In this case, the decedent’s estate would pass by means of intestacy, and the stepchildren would receive nothing. Can the stepchildren use DRR to argue they should take under the decedent’s previous will? Or was it the testator’s intent to specifically disinherit the stepchildren? The stepchildren were never cited in the administration proceeding.

Upon retaining Barclay Damon LLP attorneys, the stepchildren petitioned the court to probate the allegedly revoked will and for a finding that the so-called revocation ceremony was invalid. If the testator had properly executed a new will leaving his residuary estate to the biological child, DRR would be an unnecessary consideration, as there would be no ambiguity to ultimately resolve. Situations like these emphasize the fact that, whether or not a testator intends to revive a previous will, executing a new Will is the safest method to ensure a court has the requisite information to distribute testators’ estates according to their wishes.

Despite the fact that the use of DRR may seem ostensibly fair and practical in certain situations, the doctrine has also been widely criticized. In a probate proceeding, the party seeking to have a decedent’s prior will revived on the basis of DRR has the burden to prove that the then-testator intended for the validity of the new will to be conditioned upon the invalidity of the previous will. Because this is often a difficult argument to substantiate, many claim DRR leads to excessive speculation by the courts and should, therefore, not be permitted under NYS law. Nevertheless, while New York State’s highest court, the Court of Appeals, has yet to employ the doctrine of DRR, lower courts have considered DRR to be a valid method of reviving a decedent’s prior will.

In Matter of Sharp, a somewhat recent case out of Broome County, New York, a decedent executed five wills throughout her lifetime in 1972, 1974, 1977, 1979, and 2001. Original versions of the 1977 and 1979 wills were lost and presumed revoked. The 2001 will explicitly expressed the decedent’s desire to revoke all previous wills. However, due to the fact that the decedent hadn’t complied with certain requirements of the 2001 will ceremony, the will was denied probate.

Nevertheless, the court applied DRR to revive the decedent’s 1974 will, which had been executed properly, reasoning that “revocation of [the decedent’s] earlier wills was conditional upon her expectation that the handwritten 2001 will could be probated, or, if not, the 1977 and 1979 wills would not be lost and deemed revoked” (19 Misc. 3d 471, 475, 852 N.Y.S.2d 713, 716 (Sur. Ct. Broome County 2008)). As this case illustrates, DRR has been used by the courts to construe intent of a decedent as a matter of preventing the distribution of an estate according to the laws of intestacy.

The attorneys in Barclay Damon’s Trusts & Estates Practice Area can help you plan to avoid ambiguities in your estate plan. We’re are also able to consult with family members who find themselves in the middle of an estate administration issue where it’s unclear whether a decedent’s will controls the disposition of their assets.

If you have any questions regarding the content of this blog post, please contact Jen Flannery, Trusts & Estates Practice Area co-chair, at;  Jessie Root, associate, at; or another member of the firm’s Trusts & Estates Practice Area.

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