Revoking a New York Will

Revoke means to legally cancel a document so that it no longer applies.

There are strict requirements for revoking a New York Will. If they are not followed, complex legal issues can arise.

How do I revoke a New York Will?

A New York Last Will and Testament may only be revoked by:

  • another Will;
  • a document made by the testator and executed with the same formal requirements as a Will;
  • burning, tearing, cutting, cancelling, obliterating, or other mutilation or destruction. (See section 3-4.1 of the Estates, Powers Trusts statute).

Which method should I use?

The express method for revoking a New York Will is used by attorneys as a tactic for evading Will contests.

If you feel there’s a high risk for your Will being contested (for example if you exclude your son or daughter from the Will), then lawyers use the multiple revoked Wills approach each time when revoking a New York Will. This means you create a number of Wills, one after the other (year by year) or whatever period the attorney suggests. Each Will is only revoked in writing (not physically) by the next. Therefore, your son or daughter will need to prove multiple Wills invalid before getting to any rights under the intestacy statute.

Here’s how it works. Say you made a New York Will in 2008 and a subsequent one in 2010. You relied on a revocation clause in the 2010 Will to revoke your former Will rather than physically destroying it. Your last Will ends up being successfully contested in court. Since the whole Will is invalid, then the revocation clause does not apply and your 2008 Will ends up being your Last Will and Testament.

If however, the former Will provides for an outcome which is now inconceivable (such as providing for a former lover), then attorneys suggest using both the written and physical destruction method. This ensures the Will cannot be admitted to probate if your last Will fails for any reason.

Does divorce revoke my Will?

Getting divorced is not a legal way of revoking a New York Will. A New York Will Last Will and Testament remains valid even after divorce. Only those provisions which benefit your spouse by gift or appointment and those which appoint him/her as trustee or executor become void.

If you are getting divorced, make sure you draw up an updated New York Last Will and Testament immediately after the divorce takes effect. § 5-1.4

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