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].