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Revoking a New York Last Will and Testament – a Common Problem

shutterstock_94407685-300x200A lot of time and effort may be expended with regard to creating an estate plan.  Documents such as a Last Will and Testament, Living Trust, Health Care Proxy, and Power of Attorney require that the creator consider the various provisions and persons to be named as beneficiaries, agents or fiduciaries.  Additionally, the papers must be executed in a manner so that they are to be effective when needed.

With regard to a Will, execution requirements are delineated in Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  The New York Probate Lawyer Blog has published many articles discussing the various aspects of Will execution along with issues such as probate and Will contests.

After a Will has been effectively executed, it may be necessary to have it changed or revoked.  Additionally, after the death of a decedent, issues may arise as to whether the Will was revoked and, therefore, should not be admitted to probate.  There are some provisions in the New York estate laws which deal with these matters.  EPTL 3-4.1 entitled “Revocation of wills; effect on codicils” provides a number of rules.  The statute begins a by providing that a Will can be revoked or altered, provided a testator intends to do so, by the execution of another Will.  There is also a provision which provides that a revocation can occur through acts such as tearing, burning, obliteration or mutilation.

As can be expected, there are many instances where issues arise as to whether a document has been revoked or altered.  Surrogate’s Court litigation is often necessary to resolve these matters.

An interesting aspect of a revocation is that the statute provides that when a Will is revoked, all codicils to the Will are also deemed revoked.  It is important to bear this in mind since a Testator may incorrectly assume a codicil remains in effect.  Another important aspect of revocation involves a lost Will.  Very often, after death, the original of a decedent’s Will cannot be found and the only document available is a copy.  Probating a lost Will can be quite difficult.  There is a rebuttable presumption that a testator revoked his Will if the Will was in the custody of the testator and it could not be located at his death.  Surrogate’s Court Procedure Act Section 1407 entitled “Proof of a lost or destroyed will” describes the requirements to probate a lost or destroyed Will.  I have represented clients in lost Will cases and matters concerning Will revocations.

It should be noted that a Will can be revoked in other instances, as well.  For example, EPTL 5-1.4 provides that a divorce revokes dispositions and fiduciary appointments to a former spouse made by a Will.

As can be seen, once a Will is put into place, additional factors relating to revocation or alteration may arise in proceedings for the probate of a Will.  The assistance of an experienced estate lawyer can be essential to protecting the rights of interested parties.  Call Me Now for a free confidential review of your estate issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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