Will Contests Attorney


Even if no will contest is anticipated, the court must be satisfied with the genuineness of the will. The will should be examined for evidence of damage, obliteration, erasures, insertions, substitution of pages,

removal of staples or fasteners, and other physical alterations of the original. A full explanation for any such alterations should be obtained and included with the probate petition. The surrogate’s court usually requires that the probate decree make special references to any such interlineations, strikeovers, corrections and other “changes.” The decree will have to recite that all such “changes” were made before the will was executed, if that was the case.

A true reproduction copy of each original instrument should be made as soon as possible. The pages of a signed will should never be removed from their staples or other fasteners, even to make a copy. This will avoid later suggestions that pages could have been substituted or inserted after the document was signed—even after the decedent died. After the document is copied, the original should be placed in a secure safe or vault until it is filed in the surrogate’s court. The nominated fiduciary should be provided with a copy of the will. In addition, furnishing each major beneficiary with a copy will develop

goodwill. They most likely will request one anyway, and any person can obtain a copy from the surrogate’s court.

When the wills are revoked?


Will Contests

A. Marriage After Will Execution

N.Y. Estates, Powers and Trusts Law 5-1.3 (EPTL) governs the revocatory effect of a marriage after the execution of a will, but it applies only to wills executed before September 1, 1930. If the testator executes a will and later marries, the surviving spouse is entitled to receive a share equal to the intestate share which would pass to the spouse had the testator died intestate. If the testator makes a new will after marriage, the statute does not apply.1 If a will is executed on or after September 1, 1930, the provisions

of EPTL 5-1.1 and 5-1.1-A (regarding right of election), rather than EPTL 5-1.3, govern the rights of the surviving spouse.

B. Revocation by Termination of Marriage

Section 5-1.4 of the EPTL addresses the revocatory effect of the termination of a marriage on any disposition, appointment, provision, or nomination made in favor of a former spouse by will or otherwise. Under an amendment applying to (i) marriages ending in divorce or annulment after July 7, 2008 and (ii) any disposition, appointment, provision, or nomination taking effect only upon an individual’s death after July 7, 2008, any revocable disposition or appointment of property by a testator to or for the benefit of a former spouse, as well as any provision conferring a power of appointment or disposition on a former spouse, and any nomination of a former spouse in a fiduciary or representative capacity (including as a personal representative, executor, trustee, conservator, guardian, agent, or attorney-in-fact), is statutorily revoked.

C. Formal Revocation

Estates, Powers & Trusts Law 3-4.1, effective on September 1, 1967, sets forth the formal requirements for revoking or altering a will. A will may be wholly or partially revoked by a later written instrument. A will can also be revoked by physical act, but in such case, only a total revocation is possible. Revocation of a will revokes all codicils thereto.

Subsequent Will or Other Writing


Will Contests

A will can be wholly or partially revoked by another will or by any writing of the testator, executed in conformity with the statute governing will execution, which clearly indicates an intent to revoke or alter a prior will.

If a later will, validly executed, contains language expressly revoking a prior will, the prior will is revoked unless it is determined that such express clause is not indicative of the testator’s intent. Thus, where a court finds that a will’s revocation was conditioned upon the validity of a different will, which the will testator mistakenly believed would be given effect, and the revoked will would have been preferred by testator to intestacy, then the court may give effect to the revoked will under the doctrine of dependent relative revocation.

In the absence of an express revocation clause, the terms of the later will may operate to wholly revoke a prior will where it is evident that the testator intended to dispose of all his property by the later instrument. For example, inclusion of a residuary clause in the later will would indicate an intent to dispose of all the property in the estate. Moreover, regardless of the presence of a residuary clause, if the terms of a later will are so inconsistent with those of the former will that the two cannot be read together, the later will wholly revokes the prior one.

If a second validly executed will contains no revocatory language, is not dispositive of the testator’s entire estate, or is not totally inconsistent with the other will, the two instruments may be read together in order to make a complete disposition of the testator’s estate.

Revocation by Subsequent Writing

A writing which is not in fact a subsequent will may nevertheless operate to revoke a prior will if it is executed and attested to in conformity with EPTL 3-2.1, the statute governing will execution. The subsequent writing can be a deed of trust, a note, a separation agreement or any other writing clearly indicating the testator’s intent to revoke. The writing may even be to the existing will. As in the case of a subsequent will, the revocation may be total or partial, depending on the language of the subsequent writing and the consistency between the documents.

Revocation by Physical Act

A will may be wholly revoked by [a]n act of burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction performed by: (i) The testator. (ii) Another person, in the presence and by the direction of the testator; in which case, the fact that the will was so revoked in the presence and by the direction of the testator shall be proved by at least two witnesses, neither of whom shall be the person who performed the act of revocation.

The destructive act, to be effective, must be upon the original will and accompanied by an intent to revoke. Where a will has been in the custody of the testator and is found in a mutilated condition after his or her death, the intent of the testator to revoke may be presumed, absent evidence to the contrary.

Whether a will has been revoked by physical act depends upon the manner of defacement or alteration. If the only writing indicating cancellation is at the end or back of a will or in the margin, there is no revocation. The will is revoked, however, if the markings or words of revocation are written across the entire will or vital parts thereof. If the words or other markings do not affect the entire instrument or a vital part, there is no revocation by physical act.

Revocation by Inconsistent Act

If the revocatory writing or act does not satisfy the requirements of EPTL 3-4.1, the will may nevertheless be partially or wholly revoked by virtue of EPTL 3-4.3, which provides that [a] conveyance, settlement or other act of a testator by which an estate in his property, previously disposed of by will, is altered but not wholly divested does not revoke such disposition, but the estate in the property that remains in the testator passes to the beneficiaries pursuant to the disposition. However, any such conveyance, settlement or other act of the testator which is wholly inconsistent with such previous testamentary disposition revokes it.