There are various reasons why someone would want to revoke a will. Many, if not most, people make more than one will during their lifetime. Reasons for wanting to create a new will and revoke the old one can include divorce, remarriage, having children, acquiring or selling property, or just changing one’s mind. Also, sometimes the person who made the will (the Testator) may simply wish to revoke a prior will without making a new one. It is important to make sure that the will is, in fact, revoked.
In New York, a will can only be revoked in one of two ways:
1. The creation of a subsequent will can revoke a prior will if the appropriate formal language is included. For example, a will that states “I hereby revoke all Wills heretofore made by me” will revoke any previous wills. This language is called a revocation clause. It is important to note that, if the will with the revocation clause is itself revoked, this will not revive the original will. Therefore, both instruments wills be revoked.
2. By a physical act such as burning, tearing, cutting, canceling, obliterating or otherwise mutilating the will. However, the intent with which a will is destroyed matters. For example, if a will is accidently ripped, it is not revoked. Likewise, if a will is burned in a house fire, it would not be revoked. The Testator must have the intent to revoke the will.
In certain instances, when the Testator is not physically able to revoke the will, because of an illness or an injury, it may be revoked by proxy. In New York, a proxy can properly revoke a will at the Testator’s request, in the Testator’s presence, and in the presence of at least two witnesses.
New York estate law has two presumptions with regard to revocation of wills. A presumption allows a court to assume that a fact is true unless proven otherwise.
The first presumption is that when a will was last seen in the Testator’s possession or control and, upon the death of the Testator, is not found, it is presumed that the Testator revoked the will by physical act with intent.
The second presumption is that when a will was last seen in the Testator’s possession or control and, upon death of the Testator, is found in a damaged condition, it is presumed that the Testator revoked the will by physical act with intent.
It is also not uncommon for a will to become lost or misplaced. If this happens, the first presumption above will likely take effect. If the Testator was the last person to have the will and it cannot be found, it is presumed to be revoked. However, a lost will may be admitted to probate if it can be proven that: 1) The lost will was duly executed; 2) The lost will was not itself revoked; 3) The will’s provisions are clearly and distinctly proven by each of at least two credible witnesses, or by a copy or draft of the will proved to be true and complete.
Improperly revoking a will can have serious consequences. For example, if a subsequent will is made but does not include a revocation clause, there can be misinterpretation of the Testator’s wishes. This can cause argument among the beneficiaries and expensive legal fees.
A New York Estate Planning Attorney can make sure previous wills are properly revoked by correctly drafting a new will, and in general, ensure that proper planning is put in place. If you have any questions with regard to estate planning, please feel free to contact our office for an appointment.
