Does a New Will Override an Old Will and Can the Old Will be Revived in New York City

A new will generally overrides an old will. Confusion, however, may arise when the new will does not expressly revoke the old will. This confusion can lead to will contests, especially for disgruntled heirs. For this reason, it is especially important when executing a new will that such will contain a provision expressly revoking all other wills and codicils previously executed.

Execution of a New Will

In order to be valid, a new will must be executed in the same manner and in accordance with the formalities required by state law. In New York, it generally has to be signed by the testator at the end of the will in the presence of two witnesses; the testator must declare to the witnesses at any point before, during or immediately after the execution ceremony that the document he is signing is his will; that the witnesses attest the testator’s signature as affixed or acknowledged in the witnesses’ presence.

The Important Need for a Revoking Clause in the New Will

When executing a new will, one important provision that must not be forgotten is the clause expressly revoking all prior wills and codicils. This makes it very clear that the new will overrides the old will. In case there is no revoking clause, beneficiaries of the previous will may claim that the new will is invalid, or that the new will only revokes wholly inconsistent provisions of the old will.

Revival of the Old Will

In case there are several wills, it is always expected that beneficiaries of the prior will who stand to receive less or nothing in the new will might contest the new will.

In the event that the new will is declared invalid by the court, the question remains on whether the invalidity of the new will revives the old will.

In New York, the doctrine of relative revocation states that when a new will expressly revokes the old will, but the new will later on becomes invalidated, the old will is revived on the ground that the testator intended the invalidation of the previous will to be conditioned on the validity of the new will. Under this doctrine, where the intention of the testator to revoke is conditional and where the condition is not fulfilled, the revocation is not considered effective. Matter of Macomber, 274 App. Div. 724 (3d Dept 1949).

However, there have also been cases where the doctrine of dependent relative revocation has not been applied, especially when the Court makes the determination that there was no intention for the decedent to revive the old will. Matter of Sharp, 68 A.D.3d 1182 (3d Dept 2009).

Thus, in determining whether an old will is revived with the invalidation of a new will, courts will look into the intention of the testator.

In summary, a new will generally overrides an old will. However, to ensure and erase any doubt that it overrides the old will, it is important that the new will contain an express revocation clause.

Issues may also arise in case the new will is invalidated in court. Whether the previous will is revived will depend on the intention of the testator.

Will interpretation is a complex matter. When one has doubts, it is important to seek the counsel of an experienced estate litigation lawyer to know your rights and remedies. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Methods of Revoking a Will Under New York Law

EPTL § 3-4.1 specifies the methods by which a will can be revoked in New York:

• By execution of a subsequent will or codicil that expressly revokes the prior will or is inconsistent with it.
• By physical act such as burning, tearing, cutting, canceling, obliteration, or other mutilation by the testator with the intent to revoke.
• By physical act by another person in the testator's presence, by the testator's direction, and with two witnesses.

The physical act of revocation must be performed with the present intent to revoke. An accidental destruction or destruction by someone other than the testator (without the testator's direction) does not revoke the will.

What Happens When a Will Cannot Be Found

If a will that was known to exist cannot be found after the testator's death, a presumption arises that the testator destroyed it with the intent to revoke. The presumption is rebuttable. To overcome it, the proponent of the lost will must establish:

• Due execution of the will.
• The contents of the lost will.
• That the will was not revoked.
• That the will was lost rather than destroyed by the testator.

Lost wills can be probated in New York if these elements are proven by clear and convincing evidence. Common evidence includes:

• The drafting attorney's records showing the will's existence and contents.
• A copy of the will.
• Testimony from witnesses about the will's terms.
• Evidence about where the original was last known to be located.
• Circumstances suggesting the will was lost rather than destroyed.

Partial Revocation

A new will or codicil can partially revoke an old will rather than revoking it entirely. This happens when:

• The new document expressly revokes specific provisions of the prior will.
• The new document is inconsistent with the prior will in some respects but not in others.
• A codicil amends specific provisions while leaving the rest of the prior will in force.

Partial revocation creates interpretation issues. The remaining portions of the old will must be read together with the new document, and any conflicts resolved by the rules of construction. This complexity is one reason why complete revocation followed by a new comprehensive will is generally preferred to a series of codicils.

The Doctrine of Dependent Relative Revocation

The doctrine of dependent relative revocation (DRR) addresses situations where the testator's revocation of an old will was conditioned on the validity of a new will. If the new will fails, the doctrine may revive the old will to give effect to the testator's apparent dispositive intent.

DRR applies when:

• The testator clearly intended to revoke the old will.
• The revocation was conditioned on the effectiveness of a new disposition.
• The new disposition fails for some reason (improper execution, lack of capacity, mistake).
• Application of DRR would more closely align with the testator's likely intent than allowing the property to pass by intestacy.

Courts apply DRR cautiously. The doctrine helps when its application clearly serves the testator's intent; it does not provide a way to ignore the consequences of failed will execution in all cases.

Codicils and Their Effect on Revocation

A codicil is a supplement to an existing will that modifies the will without entirely replacing it. Codicils must be executed with the same formalities as a will. Their effect on revocation:

• A codicil can expressly revoke specific provisions of the underlying will.
• A codicil that is inconsistent with the will impliedly revokes the inconsistent provisions.
• A codicil "republishes" the underlying will, meaning the will is considered re-executed as of the date of the codicil for some purposes.
• If a codicil is invalidated, the underlying will remains in effect.

Republication can have important consequences. For example, beneficiaries who married into the family between the will and the codicil may have inheritance rights triggered by the codicil's republication of the will.

Holographic Changes

Some testators attempt to change their wills by writing on the document — crossing out provisions, writing new instructions in the margin, or signing additional pages. These holographic changes are generally not effective in New York because they do not meet the witness requirements for wills.

The original printed text of the will generally remains controlling. Crossed-out provisions may still be enforced as written. Marginal additions are generally disregarded. This is why amendments must be made through proper codicils or new wills, not informal modifications.

Effect of Marriage and Divorce on Wills

New York law provides specific rules about the effect of marriage and divorce on wills:

• Marriage after will execution. A spouse who married the testator after the will was executed has limited rights against the will. The will is not automatically revoked, but the spouse may take by intestacy or by election rather than under the will.
• Divorce after will execution. EPTL § 5-1.4 provides that divorce revokes provisions in favor of the former spouse, treating the former spouse as having predeceased the testator. The rest of the will remains in effect.
• Annulment. Annulment generally has the same effect as divorce for purposes of will revocation.

Testators who marry or divorce should review their wills promptly to ensure the documents reflect their current wishes given these statutory rules.

Best Practices for Will Changes

When changing a will:

1. Have a new will drafted by counsel rather than amending the old one with handwritten changes.
2. The new will should expressly revoke all prior wills and codicils.
3. Destroy the prior will after the new one is properly executed, ideally in the presence of witnesses.
4. Notify your attorney about any prior wills they did not draft.
5. Update beneficiary designations on non-probate assets (retirement accounts, life insurance, payable-on-death accounts) to align with the new will.
6. Re-execute powers of attorney, health care proxies, and other estate documents at the same time.
7. Store the new will safely and tell the executor where to find it.