New York Probate & Estate Litigation Blog

A decision of Nassau County Surrogate John Riordan in Estate of Grace De Lutri 324441 recently published on June 22 in the New York Law Journal determined that a decedent's 1982 will was revoked by the express terms and operation of law of her subsequent 1989 will. 

The court found that the earlier will was revoked both by the express terms of the 1989 will as well as by operation of law. The later will contained the usual provision that the instrument revoked all prior wills. In addition, the will contained an attestation clause reciting that it was executed under the supervision of the attorney draftsman who prepared it. The court notes that this clause gives rise to the presumption that the will was duly executed.

What is important here is that the earlier 1982 will would be considered revoked even if the 1989 will was itself revoked or lost . The reason for this is that it is the proper execution of the 1989 will which revokes the earlier will and not whether or not the later will is ever admitted to probate.

There is a basic way to make sure that this does not happen. Lawyers should have their clients bring their old will together with any available copies to the office when they come to execute the new one. Execute the new will and then tear up the old one in front of your witnesses. Your estate will not be troubled by disputes over earlier wills if you make sure that there are none simply by destroying the earlier will when the new one is executed.