Home » Publications & Outlines » Gail M Boggio, White Plains Lawyer, Probating Problem Wills - 11-28-06

Probating Problem Wills

GAIL M. BOGGIO, ESQ.

gboggio@mccarthyfingar.com

REVOCATION OF WILLS and RELATED MATTERS

Situations where revocation of wills would be applicable

a. Lost will proceeding (SCPA §1407)

i. A lost or destroyed will may be admitted to probate only if 1) it is established that the will has not been revoked

b. Physical changes made to original will after its execution

c. Whether will or codicil executed later in date complies with the requirements to make a valid will

SCPA §1408 – Probate not allowed unless Court satisfied

· applies even in uncontested matters

1. Revocation of wills

a. EPTL §3-4.1

§ Intent

· Capacity

· Intent presumed - If after the death of the testator the original will cannot be located, presumption that testator destroyed and thereby revoked will

o Collyer v. Collyer, 100 NY 481 (1888)

o Matter of Passuella, 169 A.D.2d 1007 (3d Dept 1991)

o Matter of Evans, 264 A.D.2d 482 (1906) testator’s blindness does not mean inability to revoke or destroy will

o Matter of Gray, 143 A.D.2d 751 (2d Dept 1988) presumption never arises when will not delivered to testator

o Matter of Lavigne, 52 NY2d 1008 (1981) testator’s obliteration of the dispositive paragraphs of his will was accompanied by intent to revoke.

o Matter of Seidel, 65 AD2d 649 (3d Dept 1978) where proponent failed to present evidence that will was torn up by person other than testator, did not overcome presumption that testator revoked will

· Presumption may be rebutted through circumstantial evidence (need something more than speculation or suspicion)

o Matter of Mittelstaedt, 278 A.D. 231 (1st Dept 1951) – presumption of intentional revocation may be overcome by circumstantial evidence. Decedent retained one of two duplicate originals.

o Matter of Herbert, 89 Misc.2d 340 (Surr. Ct, Nassau 1977) (photo copy of missing will retained by testator with original codicil admitted to probate) contrast with Matter of Engelken, 103 Misc.2d 772 (Surr. Ct, Nassau 1980) (unexecuted carbon copy marked “copy” denied probate where carbon not signed by witnesses and copy marked “Original is Safe Deposit Box” and safe deposit box closed prior to death)

o Matter of Philbrook, 185 A.D.2d 550 (3d Dept 1992) unexecuted copy of will denied probate without adequate proof of due execution.

o Matter of Huang, 11 Misc.3d 325 (Surr. Ct., NY 2005) – photocopy of will not admissible to probate even with proof of attorney supervised execution

o Matter of McManus, NYLJ 1/23/95 p 28 (Surr. Ct., NY Cty 1995) will was deemed lost not revoked in light of missing insurance documents and other important papers. Contrast with Matter of Kennedy, 167 NY 163 (1901) and Matter of Guss, 132 NYS2d 68 (Surr. Ct. Kings Cty 1954) declarations of decedent concerning her will inadmissible to prove existence and non-revocation at time of death

o Matter of Stein, NYLJ 10/10/06 p 33 (Surr. Ct. NY Cty 2006) the presumption that if decedent is the last person known to have custody of the missing will, then the decedent destroyed the will, must be rebutted by clear and convincing evidence.

§ physical act

· executing new will or codicil

o “I hereby revoked all prior wills and codicils.”

o Disposing of all testator’s assets

· a writing of the testator clearly indicating an intention to effect such revocation or alteration, executed with the same formalities as a will

· burning, tearing, cutting, cancellation, obliteration or other mutilation or destruction performed by the testator, or another person in the presence of and the direction of testator (must be proved by at least 2 other witnesses)

· nuncupative or holographic revocation

b. burden on objectant to prove revocation

c. revocation of will also revokes all codicils made to the revoked will

d. no partial revocation

“It is well settled law that a Will cannot be partially revoked by an act of revocation or obliteration, the sole method of partially revoking a Will being by a subsequent written instrument executed with the statutory formalities” Matter of Steffenhagen, 77 Misc.2d 624 [1974];

2. Doctrine of Dependant Relative Revocation

When a will revokes an earlier will, the earlier will is only revoked if the latter will is ineffective.

Doctrine does not apply to lost will proceeding (SCPA §1407) Estate of Bloomingdale, NYLJ 6/9/98 p 29 (Surr. Ct., NY Cty 1998)

No provision in New York legislation for doctrine.

Do courts actually apply the doctrine, or do the courts merely apply EPTL §3-4.1?

a. “[T]he rule has developed that in the event of an abortive attempt at partial revocation by the act of the testator which renders a portion of the Will illegible or unintelligible, the Will is still admissible to probate in its altered form if the contents of the missing or altered portion of the Will cannot be ascertained, unless it is apparent that the unascertainable portion of the Will would materially affect the remaining parts of the Will and the probate of the remaining provision cannot be carried out without doing violence to decedent's testamentary scheme Estate of Menchel, 12 Misc.3d 1156(A) (Surr. Ct. Nassau, 2006) (emphasis added)

b. Portions of will crossed out without statutory formalities of executing a will. Will as originally executed admitted to probate. “Cancellation or obliteration of a will by the Testator must be with the intent to revoke” “[W]here the intention to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.” “The doctrine . . is functionally a rule of interpretation of intention. The rule seeks to avoid intestacy where a will has once been duly executed and the acts of the testator in relation to its revocation seem conditional or equivocal.” Matter of Macomber, 274 A.D. 724 (3d Dept 1949)

c. Will as originally executed admitted to probate. Cross outs and handwritten changes given no effect since Testator had no intent to revoke will. Matter of Collins, 117 Misc. 2d (Surr. Ct. Cattaraugus Cty, 1982)

d. Testator executed a 1968 will and then a later 1970 will. The 1970 will was lost by the attorney and the terms of the will could not be sufficiently proven under SCPA 1407. Court admitted 1968 will to probate under doctrine since the testator could not have envisioned the 1970 will entrusted to her attorney would be lost and denied probate. “It is the court’s obligation to avoid intestacy if possible.” Matter of Hughson, 97 Misc. 2d 427 (Surr. Ct, Erie Cty 1978)

Other courts have not applied the doctrine

a. Husband and wife executed agreement that neither could revoke alter or amend their mutual wills. After death of husband, wife executed new will in conformity of statutory requirements. Court found that despite agreement not to revoke will, wife, in executing subsequent will, had intent to execute new will. Matter of de Lutri, NYLJ 6/22/06 p 27 (Surr. Ct., Nassau Cty 2006)

If the alteration occurs after the execution of the Will, the alteration forms no part of the Will and the Will is probated in its original form - EPTL §3-2.1(a)(1)(B)

3. Revival of Revoked will

a. EPTL §3-4.6 – Revocation or alteration of later Will not to revive prior Will or any provisions thereof

§ (b) revival of a prior will or of one or more of its provisions may be effected by:

· the execution of a codicil which in terms incorporates by reference such prior will or one or more of its provisions

· a writing declaring the revival of such prior will or one or more of its provisions, which is executed and attested in accordance with the formalities prescribed . . for the execution and attestation of a will

· a republication of such prior will, whether to the original witnesses or to new witnesses, which shall require a re-execution and re-attestation of the prior will in accordance with the formalities prescribed in 3-2.1

§ In re Brann, 219 NY 263 (1916) the effect of a codicil is to republish the will and make it speak from the new date

§ In re Rosenberg’s Will, 205 Misc. 528 (Surr Ct, Kings Cty 1953) a codicil does not revive an unattested will or an instrument which has been mutilated and effectively revoked.

§ Matter of Outerbridge, 91 Misc. 2d 686 (Surr Ct, NY Cty, 1977) – when subsequent will revokes prior wills, but a prior will is not destroyed, the execution of a codicil to the prior will republishes it.

§ Matter of Lake, 148 Misc.2d 569 (Surr. Ct. Kings County, 1990) duly executed codicil revoked provisions of will and revocation of codicil did not revive provisions absent new will or republication

Contact Me

If you think you may require the assistance of Gail M. Boggio in any matter, email (gboggio@mccarthyfingar.com) or phone her (914-385-1026) with any question you may have.