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Court Rules on Will Modification


A woman died and survived by her two adult children. Her son is married and had two children. Her daughter is the nominated administrator of her last will, as well as the complainant in this matter.
The last will was offered for probate. A New York Probate Lawyer said but, it was not drafted by an attorney nor was its execution supervised by an attorney. The last will appears to be a form on which information was inserted by typing. It is signed by the testator and three attesting witnesses. An acknowledgment of the testator’s signature was also taken by a notary public at the time of the implementation. Consequently, the file offered for validation also contains strike outs, erasures and handwritten interlineations. The alterations were apparently made by the testator.

The originally typed last will direct that the property of the woman will be given in the manner of partition. A New York Will Lawyer said it is stated that her daughter shall receive 50% of all investments & monies, such as bank accts, stocks, bond, etc.

However, in making the alterations on that line, the testator struck out the 50% and handwrote 70% PM and also wrote it in the left-hand margin next to the line.

The original last will also follows some words with four lines of six ditto marks. Sources revealed that careful examination of the original filed document indicates the presence of correction fluid in the area above the typed names of the woman’s grandchildren. Further examination of the same original filed document indicates the presence of correction fluid in the area between the daughter’s typed name and the two granddaughter’s typed names. Also, in the area below the 50% on the daughter’s typed line. The testator in her own hand wrote 15% PM next to both of her grandchildren’s typed names over apparently typed numbers and percentages blocked out by correction fluid. She also hand wrote 15%/15% in the left-hand margin next to the names of her grandchildren. She also struck out three of the four lines of six ditto marks by scribbling across them apparently in an attempt to delete them, placed her handwritten initials and the date in the right-hand margin and signed her name underneath all of her attempted alterations.

A Westchester County Probate Lawyer said the attorney states that upon information and belief at the time the file was completed, the woman bequeathed 50% of her investments, bank accounts, stock and bonds to her daughter, 25% thereof to her grandson and 25% thereof to her granddaughter. The attorney also affirms that shortly before the woman’s unexpected death following surgery, she had contacted him and arranged for the completion of a new last will and testament in proper form. He states that at the time she advised him of the provision of her will, her revised dispositions and the writing concerning the revisions was already dated.

The modification of the will indicated that all the woman’s monies, investments, stocks, bonds, etc. to be distributed with her daughter having 70%, her grandson having 15%, and her granddaughter having 15%. The writing was handwritten, signed and notarized by a notary public.

Based on records, the general rule with regard to the legal effect of alterations to a last will is that where the alteration occurred prior to the completion of the will, the will is to be admitted for validation in its revised form. A Suffolk County Probate Lawyer said if the alteration occurs after the completion of the will, the alteration forms and the last will is validated in its original form.
Further, an alteration bearing a date subsequent to the date of the completion of the original will, in the absence of evidence that the alteration was executed with the formalities of due execution, is intrinsic evidence of the invalidity of the alteration.
In the case, the attesting witnesses have no commemoration of the dispositive provisions of the original will, and considering the dated interlineations and the writing. It is clear that the deceased woman altered the terms of her will after its completion without the legal formalities.
The court stated that ordinarily the last will would be admitted for validation in its original form. However, in the case, because of the correction fluid, it is difficult to determine what the dispositive provisions were in the original last will. Where it is impossible to determine from the will itself or extrinsic evidence the words or numbers which were erased and obliterated, a serious problem may arise. The court notes that the affirmation of the attorney that the woman discussed the changes made in her will with him is hearsay and incompetent evidence to establish the original provisions of the last will.
Sources revealed that the examination of the filed document would indicate that with four rows of ditto marks that there is a possibility that the original will contained a provision for at least two other beneficiaries whose names and percentages were eliminated by correction fluid. Hence, there is also the possibility that in the original form of the last will, the percentages for the grandchildren were, in fact, less than the 25%.
Moreover, it is well settled law that a will cannot be partially revoked by an act of revocation, the sole method of partially revoking a last will being by a subsequent written instrument executed with the legal formalities. Where an abortive attempt is made to partially revoke portions of a will, as in the case presented, the will must be admitted for validation in the form in which it was originally completed if the original language can be ascertained. On the other hand, the rule has developed that in the event of an abortive attempt at partial revocation by the act of the testator which renders a portion of the will illegible or unintelligible, the will is still admissible for validation in its altered form if the contents of the missing or altered portion of the will cannot be ascertained, unless it is apparent that the unascertainable portion of the will would materially affect the remaining parts of it, and the probate of the remaining provision cannot be carried out without doing violence to the deceased’s testamentary scheme.
In the case, if a rule is applied to the will, 50% of the woman’s personal property would pass to her daughter and the remaining 50% of that property would pass in intestacy. As a result, the woman’s share the estate in intestacy and the woman’s daughter will receives 75% of the movable assets. The woman’s real property apparently passes in intestacy and the will has no residuary clause, and makes no reference to her real property.
As the two grandchildren’s would be prejudiced by such a result, the court considers it necessary to appoint a guardian to protect their interests which may be in conflict or adverse to their father. There also may be scientific evidence which could reveal the original form of the last will or other extrinsic and admissible evidence which would prove the terms of the original will to the benefit of the children.
Consequently, the court decided to appoint a guardian for the woman’s grandchildren. Further, the court also denied the appeal to probate the will as modified.
The guardian and the attorney are directed to appear in the court for a conference on the matter.
When you decide to make a last will and testament, it is important to seek legal assistance from the experts. If you need such services, you can consider the Nassau County Estate Lawyer or Nassau County Estate Administration. On the other hand, if you are a family member who wants to validate your parent’s last will and testament, you can seek help from the Nassau County Probate Lawyer at Stephen Bilkis and Associates.

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