Revocation of Will

Question 1

What constitutes a valid revocation?

Answer 1

A will can be revoked in only one of two ways:

a. by subsequent testamentary instrument, executed with appropriate formalities; OR
b. by physical act (e.g. burning, tearing, cutting, canceling, obliterating, or other act of mutilation) BUT MUST HAVE intent to revoke.

Question 2

How does one conduct an express revocation? Is there revocation by implication?

Answer 2

**Express Revocation: **The typical express revocation language in a Will is “I hereby revoke all Wills heretofore made by me.”

**Revocation by Implication: **If you have a will that was executed after another properly executed will, with no express revocation language, to the exten possible, you read the two instruments together. The second is treated as a codecil, amendment to the 1st will, and revokes the 1st will to the extent there are inconsistent terms. HOWEVER - if the second will is wholly inconsistent with the first, the first will is revoked by implication.

Question 3

How does one revoke a will by physical act of another (revocation by proxy)?

Answer 3

The physical act must be:

a. at the testator’s request;
b. in the testator’s presence; AND
c. witnessed by at least two witnesses.

This means there must be 4 people in the room - testator, actor, and 2 witnesses.

Question 4

What happens when a will that was last seen in the testator’s possession or control is not found after death?

Answer 4

The presumption is that the testator revoked the will with intent by physical act to revoke.

Question 5

What happens when a will that was last seen in the testator’s possession or control is found in a damaged condition after the testator’s death?

Answer 5

The presumption is that the testator was the one who did it - revoked by physical act with intent to revoke.

Question 6

How can changes be made after the will has been executed?

Answer 6

There are only 2 ways a testator can make changes in her will:

1. Write a new will which revokes the 1st will; OR
2. Make a codecil that amends the 1st will.

Both must be duly executed (i.e. satisfy the 7 point test).

Words added to the will after its been signed and witnessed are disregarded. Partial revocation by physical act is not recognized in NY.

Question 7

Can a revoked will be revived? If so, how?

Answer 7

If a testator executes a will that is revoked by a later will containing a revocation clause, the first will cannot be reviewed by the testator merely revoking the later will.

The first will can only be revived in one of two ways:

1. Re-execution - signed by testator and two witnesses signed; OR
2. Doctrine of “republication by codicil”: testator validly executes codecil, making changes to 1st will.

NOTE: The “no revival” rule also applies to codecils.