Does a New Will Revoke an Old Will in New York? And When Can the Old Will Be Revived?

By Albert Goodwin, Esq., New York estate litigation attorney, Law Offices of Albert Goodwin

The short answer

Yes. In New York, a later will that is validly executed revokes an earlier will, either because it says so in an express revocation clause or because its terms are inconsistent with the earlier will. The rule is in EPTL § 3-4.1.

The second half of the question has a less intuitive answer. If a testator makes a second will and then revokes that second will, the first will does not come back. EPTL § 3-4.6 states that revoking the later will "does not, of itself, revive the prior will or any provision thereof." The first will returns only if the testator re-executes it, republishes it, or adopts it by a properly executed codicil or writing. There is a narrow judge-made exception, dependent relative revocation, discussed below.

One situation looks like revival but is not. If the second will is denied probate because it was never validly executed, or because the testator lacked capacity or was unduly influenced, the second will never revoked anything. The first will was never displaced and can be offered for probate in Surrogate's Court as the decedent's last valid will.

How a later will revokes an earlier one: EPTL § 3-4.1

EPTL § 3-4.1(a)(1) allows a will, or any part of it, to be revoked or altered by another will, or by a writing of the testator that clearly shows an intent to revoke and is executed with the same formalities as a will. Those formalities are set out in EPTL § 3-2.1: the testator signs at the end, signs or acknowledges the signature in the presence of each attesting witness, declares to the witnesses that the document is his or her will, and at least two witnesses sign at the testator's request within thirty days of each other.

A later will revokes an earlier one in two ways:

• Express revocation: the new will contains a clause revoking all prior wills and codicils. Nearly every attorney-drafted New York will has one, usually in the first paragraph.
• Revocation by inconsistency: the new will has no revocation clause, but its dispositions cannot be squared with the earlier will. A later will that disposes of the entire estate is generally read as revoking the earlier will in full. A later will that deals with only some assets revokes the earlier will only to the extent of the conflict, and the two documents are read together. This is the same effect a codicil has.

EPTL § 3-4.1(a)(2) also permits revocation by physical act: burning, tearing, cutting, cancelling, obliterating, or otherwise destroying the will, done by the testator with intent to revoke, or by another person in the testator's presence and at the testator's direction. When someone else performs the act, two witnesses other than that person must prove it. Accidental destruction, or destruction by a family member acting on their own, revokes nothing. Under EPTL § 3-4.1(b), revoking a will also revokes all codicils to it.

Separately, EPTL § 5-1.4 revokes dispositions to a former spouse by operation of law on divorce or annulment, treating the former spouse as having predeceased the testator. The rest of the will stands.

When the new will is denied probate, the old will was never revoked

A revocation clause is only as good as the document it sits in. If the Surrogate's Court denies probate to the later instrument for lack of due execution, lack of testamentary capacity, undue influence, or fraud, the instrument is not a will. It has no dispositive effect and no revocatory effect. The earlier will remains the operative instrument.

In that situation the earlier will is not "revived." It is simply proved. The person named as executor in the earlier will, or a beneficiary under it, files a petition to probate that instrument. If the original cannot be located, the petitioner must proceed under SCPA 1407, discussed below.

When the testator revokes the new will: EPTL § 3-4.6

The harder case is the testator who signs a valid second will, later has a change of heart, and tears it up expecting the first will to control again. New York rejected the common-law revival rule in that situation. EPTL § 3-4.6(a) provides:

"If after executing a will the testator executes a later will which revokes or alters the prior one, a revocation of the later will does not, of itself, revive the prior will or any provision thereof."

The result, absent one of the steps below, is that the testator dies with no will. The estate passes by intestacy under EPTL § 4-1.1, and a distributee must petition for letters of administration rather than letters testamentary.

EPTL § 3-4.6(b) lists three ways a testator can bring a prior will back:

1. Codicil incorporating the prior will: a codicil, executed with full will formalities, that in terms incorporates the prior will or specific provisions of it by reference.
2. Writing declaring revival: a separate instrument declaring that the prior will is revived, signed and attested in the manner required for a will.
3. Republication by re-execution: the testator re-signs the prior will before witnesses, old or new, with a new attestation under EPTL § 3-2.1.

Telling family members "I want the old will back," writing a note to that effect, or retrieving the old will from a drawer does none of these things. The statute requires a signed and witnessed act.

The exception: dependent relative revocation

Dependent relative revocation is a doctrine of intent. Where a testator revokes a will on the condition, express or implied, that a different disposition will take effect, and that disposition fails, the court may treat the revocation as never having occurred. The theory is that the testator would have preferred the revoked will to intestacy.

In Matter of Macomber, 274 App. Div. 724 (3d Dept 1949), the Appellate Division, Third Department, applied the doctrine. The court treated the testator's revocation of an earlier instrument as conditioned on the effectiveness of the later disposition. When the later disposition failed, the revocation was held ineffective and the earlier instrument could be proved. The case is the standard New York citation for the proposition that a conditional revocation fails with its condition.

In Matter of Sharp, 68 A.D.3d 1182 (3d Dept 2009), the same court declined to apply the doctrine. The record did not show that the decedent's revocation had been conditioned on another instrument taking effect, and the court would not presume a condition the evidence did not support. Read together, the two cases set the boundaries: the doctrine is available in New York, but the party invoking it carries the burden of showing, from the circumstances surrounding the act of revocation, that the testator revoked only because he or she believed another disposition was in place.

Surrogate's Courts apply the doctrine sparingly. It is not a cure for every failed estate plan, and it does not override EPTL § 3-4.6 as a general matter. Its most common successful use is where a testator destroyed a will while in the act of making, or on the mistaken belief that he or she had made, a replacement.

Four fact patterns

The improperly witnessed second will. A father signs a 2019 will leaving his house in Queens to his daughter. In 2023, in declining health, he signs a one-page document leaving the house to his live-in caretaker. Only one person witnessed it. The 2023 document fails EPTL § 3-2.1 and cannot be admitted to probate. Because it is not a will, it revoked nothing. The daughter, or the executor named in the 2019 will, petitions to probate the 2019 will. The caretaker may try to object, but a person who takes nothing under the 2019 will and is not a distributee generally lacks standing under SCPA 1410.

The torn-up second will. A mother signs a valid 2015 will dividing her estate equally among three children. In 2021 she signs a valid will leaving everything to one child, with a clause revoking the 2015 will. In 2023 she tears up the 2021 will, telling her attorney she wants "the old arrangement." She dies before signing anything new. Tearing up the 2021 will revoked it, but under EPTL § 3-4.6 the 2015 will is not revived. The likely outcome is intestacy, which here happens to produce equal shares among the children. If the children were unequal in number of descendants, or if a non-distributee was named in 2015, the result would differ from what the testator wanted. Had she signed a short codicil incorporating the 2015 will by reference, the 2015 will would control.

The will destroyed while a replacement was being prepared. A testator signs a 2020 will, then meets with a lawyer to prepare a new one. The lawyer asks for the original 2020 will and the client destroys it, believing the new will is being signed that week. The client dies before the signing. This is the pattern where dependent relative revocation is most often argued. If the proponent can show the destruction was conditioned on execution of the replacement, the court may treat the 2020 will as unrevoked. The proponent would then have to prove it as a lost or destroyed will under SCPA 1407, typically from the lawyer's file copy.

The second will set aside for undue influence. A testator executes a 2017 will leaving her estate to her nieces. A 2022 will, prepared at the direction of a new companion and leaving everything to him, is offered for probate. The nieces object. After SCPA 1404 examinations and a trial, the Surrogate finds undue influence and denies probate. The 2022 instrument revoked nothing. The nieces petition to probate the 2017 will. See our page on will contests in New York for how objections to a later will are litigated.

How this plays out in Surrogate's Court

A few procedural points matter when more than one will exists.

• File every known instrument. The probate petition asks whether the decedent left any other testamentary instrument. A later will must be filed with the court even by a proponent who believes it is invalid. Anyone holding an earlier will should file it as well, because under SCPA 1403(1)(d) the beneficiaries and fiduciaries named in another will on file with the court, whose interests are adversely affected by the propounded will, are entitled to citation. A prior will that sits in a drawer gives its beneficiaries no notice.
• Standing to object. SCPA 1410 gives standing to any person whose interest in the estate would be adversely affected by admission of the propounded will. A beneficiary who takes more under the earlier will than under the later one has standing to object to the later will. A distributee who would take more in intestacy than under either will has standing to object to both.
• SCPA 1404 examinations. Before filing objections, a person with standing may examine the attesting witnesses and the attorney who drafted the will. These examinations are where most execution defects, capacity issues, and undue influence facts surface.
• Offering the earlier will. A proponent of the earlier will can petition for its probate in the same proceeding or in a separate one. Courts commonly hold the earlier petition pending the outcome of the contest over the later will, since the earlier will can only be admitted if the later one is refused.
• Missing originals: SCPA 1407. When the original of a will last known to be in the testator's possession cannot be found after death, New York presumes the testator destroyed it with intent to revoke. Matter of Fox, 9 N.Y.2d 400 (1961). To overcome the presumption and probate a lost or destroyed will, SCPA 1407 requires proof that the will was not revoked, that it was duly executed, and that all of its provisions are clearly and distinctly proved by at least two credible witnesses or by a copy or draft shown to be true and complete. The drafting attorney's file is usually the key evidence.

A contested probate involving competing instruments in New York County, Kings County, or Queens County commonly takes well over a year from the filing of objections to a decision, longer if the matter goes to trial or is appealed. Our sample New York City probate timeline shows the uncontested baseline for comparison.

Drafting lessons

Most of the disputes described above come from avoidable errors. If you are changing your estate plan:

1. Sign a new will with an express clause revoking all prior wills and codicils. Do not rely on inconsistency.
2. Do not destroy the old will until the new one has been signed and witnessed under EPTL § 3-2.1.
3. If you want to return to an earlier will, do not simply destroy the later one. Sign a codicil or a new instrument that incorporates the earlier will by reference, or re-execute the earlier will before witnesses.
4. Do not mark up, cross out, or write in the margins of a signed will. Handwritten changes are not effective in New York except for the narrow military and mariner exceptions in EPTL § 3-2.2, and they invite a revocation argument over the original text.
5. Tell your attorney about every prior will, including ones drafted by someone else, and consider filing the current will for safekeeping with the Surrogate's Court under SCPA 2507.

For help preparing a will that revokes prior instruments cleanly, see our page on drafting a will in New York.

Talk to a New York estate litigation attorney

If you are the beneficiary of an earlier will and a later will has surfaced, or if you are the executor of a later will facing objections from people named in an earlier one, the order in which instruments are filed and challenged affects the outcome. The Law Offices of Albert Goodwin handles contested probate proceedings in the Surrogate's Courts of New York County, Kings County, Queens County, and the surrounding counties. Call 212-233-1233 or email [email protected] to discuss your situation.