A fairly interesting decision from the Broome County Surrogate deals with a will revoked by subsequent wills. In The Matter of the Will of Julianna B. Sharp 852 N.Y.S.2d 713 the doctrine of dependent relative revocation was held to apply to revive a will that had been properly executed and witnessed even though the decedent had written three subsequent wills, each of which revoked earlier wills.
"What!" you say?"How can such a thing be?" The problem here is that the three subsequent wills which were produced were not originals but were photocopies. Yet another (fourth) will was also produced. This one was the latest made by the testatrix. It was a holographic (handwritten) will but alas, it was not properly witnessed and could not therefore be admitted to probate. What’s a Surrogate to do?
For one thing, Surrogate Eugene E. Peckham decided to rely upon a presumption in favor of testate distribution and against intestacy. Searching for the clear intent of Ms. Sharp, he determined that since she had made a will, she did not intend to die intestate. Taking this route of supposition to the next level, the court also surmised that the testatrix had relied on her holographic will to be admissible to probate. Therefore, the standard provision in the will which revokes all prior wills and codicils was found to be conditional upon the will’s viability. Once it was determined that the handwritten will was not executed with the formality required by law, the court looked back past the three photocopy wills to the original copy of the will which was duly executed and witnessed . It was this revoked will which was then revived and admitted to probate. This was a 1974 will which , the Surrogate found, met the test posed by SCPA 1408 which provides that the Surrogate "must be satisfied with the genuineness of the will and the validity of its execution."
For the record, there is a line of cases in direct opposition to Surrogate Peckham’s decision. These cases would have led to a determination that Juliana Sharp died intestate.
Before you come to any conclusions of your own, consider all of the life changes that have occurred to you in the past thirty four years. In such a time span marriages come and go (sometimes several times). Some unfortunate children are born only to pass away in adulthood leaving children of their own behind. Adorable little kids grow into disloyal rogues. Fortunes are made and lost. Certainly one’s attitude and outlook about the contents of one’s will must change during this time as well. Maybe intestacy is an appropriate outcome rather than a set of testamentary instructions written nearly two generations ago.
Will this case be appealed? If so, will the decision be affirmed or reversed? Will this ancient thirty four year old will survive four subsequent wills? Stay tuned.