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Court determined that will was not revoked.  In re Kranz-Marks, 2020 NY Slip Op 50646(U) (N.Y. Surr. Ct. 2020)


On August 12, 2018, Kranz-Marks passed away. She left a will dated June 9, 2015.  However, the first page of the will had the handwritten word “VOID.” It also included the followed handwritten statements:   “Everything will be left to my three daughters: Jessica, Emily, and Erica Marks ONLY!!!”  and “My previous will to be executed is with my Aunt Janine Kranz in Wading River.”  The testator’s signature was below the statements.

The petitioners argue that the writing on thee 2015 will constitute a revocation of that will under EPTL § 3-4.1(b). They sought to administration of the estate under the laws of intestacy rather than probating the 2015 will. In addition, a 2014 will was submitted to the court by another party along with a petition for that will to be probated.

Among other things, the Surrogate’s Court of Orange County had to determine  whether the 2015 will was effectively revoked.

Revoking a will in New York
In New York, there are 3 ways to revoke a will:

  • Another will. If the testator executes another will, the prior would be revoked.
  • A writing. If the testator puts in writing that they intend to revoke a will, the writing must be executed with the same formalities of a will in order for it to be effective.
  • Physically destroying. A will can be revoked by the testator burning, tearing, cutting, obliterating or in some other way mutilating or destroying the will.  Destroying one page would not be effective.  The entire will must be physically destroyed for their to be a complete revocation.

EPTL § 3-4.1

In addition, there are special rules for how to revoke a holographic (handwritten and not witnessed) will or a nuncupative (oral) will.  Note that for the revocation of a will to be effective, the testator must have had the intent to revoke it.  Accidentally destroying a will would not be effective in revoking it.  An act of revocation by someone other than the testator would also be ineffective to revoke a will.

The testator must complete the act of revocation or direct someone else to do so in their presence.  For example, a testator can revoke  will by directing their attorney to rip up their will and the attorney does so in the presence of the testator.

If the testator revokes their will, any codicils to that will will also be revoked.

2015 Kranz-Marks will
The court concluded that the 2015 Kranz-Marks will was not revoked.  Simply writing “void” on the will does not meeting the statutory requirements for revoking a will.  Even if the testator intended to revoke the will, for a writing to effectively revoke, the writing must obliterate.

An example of effectively revoking a will by writing on it would be for the testator to write an X over each page and cross out the attestation clause and signatures.  That would amount to an obliteration of the will.

Because the court determined that the 2015 will had not been revoked, any interested party under the will was free to file a petition to probate that will.

Effect of revoking a will
If a will is revoked, a prior will may be probated. If there is no valid prior will, then the estate would be intestate.  Its assets would be distributed according to New York’s law of intestate succession. Only the decedent’s legal heirs would be entitled to share in the decedent’s estate.

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