Oneida County Surrogate Louis Vigliotti’s decision in the Estate of Patricia Powers is one more example of what happens when you write on a will —-generally nothing. Here it appears that the testator wrote a note on the face of the Will that she was revoking it and writing a new will (which she apparently never did).Your lawblogger uses the word “appears” advisedly since Ms. Powers is no longer in a position to tell us whether or not she actually wrote those words or whether some clever imposter was merely trying to put her estate into intestacy as part of his or her own agenda. That, by the way, is why we require anything a testator does relating to a Last Will and Testament to be witnessed according to law.
It really isn’t hard to revoke a will. Tear it up. Burn it. Take a pen and visibly obliterate a portion of it (then if you write “revoked” next to the obliteration, it will probably carry some weight.). Patricia Powers did none of these things. In fact, the court points out that nothing that was written on her will so much as touched, obliterated or even defaced a single printed word . The court further notes that there was”no burning, tearing , cutting or mutilation of any kind”. The statutory formalities prescribed by EPTL 3-4(a)(1)A) were not observed at all and the court ruled that the Will remains in effect and could be admitted to Probate.
As I have mentioned earlier on this blog, it is never a good idea to write on the face of a will. Sometimes a testator will attempt to change his or her own will, doubtless in a vain attempt to avoid a trip to visit their attorney in the mistaken belief that this will save some money. Some will write notes on their Will attempting to change percentages or amounts being left to some beneficiary or another or even draw a simple line through somebody’s name to take them out of the Will.
Such actions result in only two possible unintended results. First is that merely writing on the Will has no effect at all and whatever changes might have been easily (and relatively inexpensively ) achieved by having a lawyer redraft the Will will not occur. Second is that if in attempting to make some correction or addition to the Will, a portion of it is accidentally obliterated (for example, blacking out cousin Ralphie’s name with a magic marker and writing cousin Randy’s name in with pen or pencil) will serve to revoke the Will and result in intestacy, with the instrument becoming totally meaningless.
Your attorney is capable of making the changes you want and keeping you from doing really serious harm to your estate plan which, once you are gone, cannot be corrected.