A will is an ambulatory document, meaning that it can be changed at any time prior to a testator’s death. If you no longer want your will to be in effect, you must revoke your will, and New York law provides three ways to accomplish revocation:
- Creation of another will.
- A writing of the testator indicating an intention to revoke the will, executed with the formalities required to make a valid will in New York.
- An act of destruction.
The rule governing how to revoke a will in New York is EPTL § 3-4.1.
A Will Can Be Revoked Under New York Law By Making Another Will
The first, and most common, way to revoke a will under New York law is to simply create another will. Most wills contain language explicitly revoking all prior wills.
It is always a good idea to work with a New York estate planning lawyer to create your new will. The attorney can make sure that all of the required formalities are complied with, so that your new will is valid and effectively operates to revoke your prior will under New York law.
A Will Can Be Revoked Under New York Law By A Writing
Another, less used method of revoking a will is by a writing of the testator indicating an intention to effect a revocation of the will. This writing must be executed by the testator with the formalities required for a valid will under New York law. Read What Are The Requirements For A Valid Will In New York to learn more.
A Will Can Be Revoked Under New York Law By Destruction
New York law also allows a testator to revoke a will by a physical act. EPTL § 3-4.1 provides that a will can be revoked by an act of:
- Burning
- Tearing
- Cutting
- Cancellation
- Obliteration
- Other mutilation or destruction
This act must be performed either by the testator OR by another person in the presence of and at the direction of the testator.
If the revocatory physical act is performed by another person, the fact that the New York will was so revoked in the presence and by the direction of the testator must be proved by at least two witnesses. Neither of the witnesses shall be the person who performed the act of revocation.
How Do You Revoke A Codicil To A Will In New York?
If you revoke a will in accordance with New York EPTL § 3-4.1., then all codicils to that will are also revoked.
Presumptions That Apply To Revocation Of New York Wills
Sometimes a New York court is allowed to apply a presumption with respect to the revocation of a will under New York law.
If the testator was in possession of the original will, and the will can not be found after the testator’s death, New York law presumes that the testator destroyed the will with the intent to revoke the will. Evidence can be presented to rebut the presumption that the will was revoked. New York EPTL § 1407 governs how lost or misplaced wills may be admitted to probate, and we have also written about lost wills here.
It is very common for people to execute more than one will in their lifetime. By following New York law regarding how to revoke a will, a testator can make sure that their testamentary intent as expressed in their final will is honored, not their intent as stated in a prior will.
