Estate, Powers and Trusts, § 3-4.1: Revocation of Wills; Effect on Codicils

It is quite common for a testator to need to change a will after creating it. In fact, it is a good practice for everyone to regularly review their estate documents and update them when necessary. Over the course of time family relationships evolve, financial positions change, and overall goals change. As are result, decisions as to what should happen to our property may also change. New York law has rules related to what is required to execute a will, revoke a will, change a will, and revive revoked will. Failure to follow these formalities may result in the changes being invalid and your wishes not followed during probate. If you are contemplating making changes to your will or other estate documents, it is important that you work with a skilled New York will attorney who understands New York law related to the requirements for executed, revoking, changing and reviving a will.

In order to revoke a will, the testator must:

• New will. The most recent will that was appropriately executed by the testator will take precedence over previously executed wills.
• Revocation document. A document that is properly executed by the testator and that states the intention of the testator to revoke a will
• Destroying or defacing a will. A physical act by the testator that destroys or defaces the will is an effective way to revoke a will. For example, burning, tearing, cutting, writing over the text, mutilating, or destroying the will, would all be physical acts that would be effective to revoke the will.
• Act of another person. An act of another person at the direction of the testator to destroy the will would be effective to revoke the will.
• Nuncupative and holographic wills. A nuncupative will is an oral estate document and a holographic is handwritten document that is not witnessed. In New York such wills are only valid when created by individuals in the armed forces during the time of conflict, and become invalid 1 year after the testator ceases serving with the armed forces. A will can be revoked or altered by a nuncupative or holographic declaration if the testator is in the armed services circumstances required for a nuncupative or holographic will to be valid. If you are wondering whether your nuncupative or holographic estate document is valid, discuss your concerns with a New York will attorney.

It is important to understand that if a will is effectively revoked, all codicils executed to amend that will will also be revoked.

In order for a will to be properly executed, and therefore, for a document revoking or altering a will to be properly executed, the following steps are required:

• Signed. The document must be signed by the testator at the end. If the testator signs the document anywhere else, and not at the end, the Surrogate’s Court may determine that it is invalid. New York law allows another person to sign a will for the testator, but the person must sign it in the presence of the testator and at the direction of the testator.
• Witnessed. The document must be signed in the by at least two witnesses. The witnesses should be disinterested, meaning that the witnesses should not also be beneficiaries. If a witness is also a beneficiary, then beneficiary’s testamentary gift will be void. If there are two other disinterested witnesses, then the witness who is also a beneficiary will be allowed to keep his or her testamentary gift. If the witnesses did not actually see the testator sign the will, the testator must acknowledge to the witnesses that it is his or her signature on the will. The witnesses must also sign the document.

As a will attorney in New York will explain, these requirements apply to executing wills, as well as executing documents to revoke wills, alter wills, or revive wills.

Joe, who was not married and did not have any children, wrote a will leaving his entire substantial estate to his 4 nephews: Mark, Matt, Liam, and Lester. The will was signed by Joe at the end, and witnessed by Joe’s 3 cousins. Ten years later, Joe executed a codicil to his will, leaving a lump sum of $250,000 to his niece, Amanda. The codicil was also signed and witnessed. Ten years after that, Joe had a falling out with all of his nephews and decided that he wanted to cut all of them out of his will. Joe contacted his attorney and executed a document that specifically revoked his will. However, the document did not mention anything about the codicil. Joe’s attorney had drafted a new will for him. However, Joe was killed in a tragic accident before he was able to execute the new will.

The court determined that Joe died intestate and appointed an estate administrator to wind up Joe’s affairs and distribute his estate according to the rules of intestate succession. Amanda objected, arguing that she should get $250,000 based on the codicil that Joe never said that he intended to revoke. However, the court disagreed and concluded that the codicil was revoked when Joe revoked the will.

1. Agreement to convey property previously disposed of by will not a revocation: Estates, Powers and Trust, § 3-4.2
2. Revocatory effect of a conveyance, settlement or other act affecting property previously disposed of by will: Estates, Powers and Trust, § 3-4.3

(a) Except as otherwise provided in this chapter, a revocation or alteration, if intended by the testator, may be effected in the following manner only:

(1) A will or any part thereof may be revoked or altered by:

(A) Another will.

(B) A writing of the testator clearly indicating an intention to effect such revocation or alteration, executed with the formalities prescribed by this article for the execution and attestation of a will.

(2) A will may be revoked by:

(A) An act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by:

(i) The testator.

(ii) Another person, in the presence and by the direction of the testator;  in which case, the fact that the will was so revoked in the presence and by the direction of the testator shall be proved by at least two witnesses, neither of whom shall be the person who performed the act of revocation.

(b) In addition to the methods set forth in paragraph (a), a will may be revoked or altered by a nuncupative or holographic declaration of revocation or alteration made in the circumstances prescribed by 3-2.2 by any person therein authorized to make a nuncupative or holographic will.  Any such nuncupative declaration of revocation or alteration must be clearly established by at least two witnesses;  any such holographic declaration, by an instrument written entirely in the handwriting of the testator, although not executed and attested in accordance with the formalities prescribed by this article for the execution and attestation of a will.

(c) The revocation of a will, as provided in this §, revokes all codicils thereto.

If you need to revoke your will, it is imperative that you do so in the proper manner. Otherwise, your estate may be distributed in a manner that is inconsistent with your current wishes. Contact a skilled will attorney serving New York to help. The experienced attorneys at the Law Offices of Stephen Bilkis & Associates have over two decades of experience in all facets of estate law, including drafting estate documents, complex estate litigation, and probate administration. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Queens, the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Staten Island, Suffolk County and Westchester County.