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Court Decides Whether 1958 Will has been Revoked- In re Grant’s Will, 334 N.Y.S.2d 780 (N.Y. Surr. Ct. 1972)


The issue before the Surrogate’s Court is whether a testator properly revoked a prior will.

As long as he (or she) is not mentally incapacitated, a testator has the right to revoke a will at any time. Under New York EPTL § 3-4.1, there are 3 ways to revoke a will.  1.  The testator can intentionally, physical destroy the will by ripping it up, burning it, cutting, shredding it, or in some other way destroying it. If the testator instructs another person to destroy the will, then that would serve as a revocation as well.  2.  The testator can write and execute a new will. Doing so would automatically revoke a prior will and codicils, if any. To make his intentions absolutely clear, in the new will the testator can include a clause stating that the new will revokes any prior wills and codicils.  Executed under the proper circumstances, a holographic or nuncupative will would also revoke a prior will. 3.  The testator can revoke a will by creating a document (other than a new will) indicating his intention to revoke his will.

In In re Grant, decedent Grant was a resident of Kings County, New York, but spent time in the Barbados and had real property in the Barbados.  He also had personal property in New York.   In 1958 the decedent executed a will in New York in which he left his real property in Barbados to two of his sisters.  He left his residuary estate which consisted of personal property in New York, to one of his brothers. He had another sister and another brother who did not receive anything under the 1958 will.

Ten years later, in 1968, the decedent executed a new will while he was in Barbados.  In the will he included a statement that he was “revoking and making void all other wills and testamentary dispositions.”   The will also made a statement that it was to apply only to the Grant’s property in the Barbados.  It did not include a residuary clause.  Thus, it did not address how Grant’s personal property was to disposed of.  Also, like in the 1958 will, Grant left out the same brother and sister.

Upon Grant’s death, two of his siblings, the brother and sister who did not benefit under either the 1958 New York will or the 1968 Barbados will, filed an objection.  They contended that because the Barbados will revoked the New York will and because the Barbados will did not dispose of the decedent’s personal property in New York, that property should be part of the decedent’s intestate estate.  Under New York’s laws of intestate succession, if Grant did not have a surviving spouse, no children, and no parents, his intestate estate would be divided equally among his siblings.  Thus, if the Surrogate’s Court agreed with the objectants, the brother and sister who were left out of both wills would inherit a portion of the decedent’s personal property in New York.

In making its decision, the court did not view the revocation clause in the 1968 will as dispositive.  Instead, the court sought to determine the intention of the decedent.  The court also took into consideration the constructional preference against intestacy.  As a result, the court disagreed with the objectants.  Instead, the court essentially concluded that the 1968 was a codicil to the 1958 will and was meant to only impact the part of the 1958 will disposing of the property in Barbados.  Thus, the portion of the 1958 related to the New York personal property was not revoked and the New York property was not part of the decedent’s intestate estate.

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