Gerace brought a petition to probate a Will. The decedent’s mother in this case filed objections in this proceeding. She claimed the Will had been revoked 4 years after it had been executed. The decedent had written on the top of the Will “worked to revoke it.” Gerace claimed this was a revocation of the Will. Surrogate Louis Gigliotti sitting in Oneida County noted the Will was handwritten and on top of the Will was the handwritten notation referring to a “new” Will. Gerace took the position that he was the decedent’s attorney from 1995 until her death. He saw her at least twice annually, but at no time did she indicate she wanted to make a new Will or revoke the prior Will.
The second issue presented to the court was did the decedent’s actions cause the cancellation of the Will. The court took into consideration there was no burning, tearing, cutting or mutilation of the Will. Judge Gigliotti took the position that in the event the words on top of the Will were written by the decedent, those handwritten notes on the Will did not act to revoke the Will. Surrogate Gigliotti stated that for the decedent to have written a new Will or modified the old Will, the new Will or the Will modifications would need to be done with the appropriate testamentary formalities. Since the testamentary formalities were not undertaken in this case, the decedent’s actions did not cause the revocation of the prior Will and the Will should be admitted to be probated.
Conclusion
Should you wish to withdraw or modify or revoke a Will, hire an attorney to take the appropriate action to write a new Will and cause the revocation of the prior will. New York State requires testamentary formalities with regard to the execution and/or revocation of Wills and those testamentary formalities must be correctly adhered to.
