Competing and Later-Discovered Wills
How a Will is revoked
A second Will turns up. It is dated later, or earlier, or it is undated. It leaves things differently. Somebody in the family has had it in a drawer, or a lawyer's file room has produced it, or it arrives in the post after the funeral.
The instinct is that the newest one wins. New York's rules are more particular than that, and several of the things most commonly said about them are not in the statute at all.
New York allows revocation in a closed list of ways, and the statute says so in terms — a revocation or alteration may be effected "in the following manner only."
A Will or any part of it may be revoked or altered by another Will, or by a writing of the testator clearly indicating an intention to revoke or alter, executed with the same formalities as a Will. A Will may also be revoked by a physical act: burning, tearing, cutting, cancellation, obliteration, or other mutilation or destruction — performed either by the testator, or by another person in the testator's presence and at the testator's direction. Where somebody else does it, the fact must be proved by at least two witnesses, and neither of them may be the person who performed the act.
Revoking a Will revokes every codicil to it.
Here is what the statute does not say, and it is the most common misunderstanding in this area. It does not say that a later Will automatically revokes an earlier one. It does not say that a later Will revokes an earlier one only so far as the two are inconsistent. It says only that a Will "may be revoked or altered by … another Will." Whether the earlier instrument is revoked therefore depends on what the later one actually says — which is why a properly drafted Will opens by expressly revoking all prior Wills and codicils, and why the absence of that clause is the first thing we look for.
Revival: New York's rule is strict, and it is misstated in both directions
Suppose there is a 2015 Will and a 2020 Will, and the 2020 Will is revoked. Does the 2015 Will come back?
Not by itself. New York provides that a revocation of the later Will does not, of itself, revive the prior Will or any provision of it.
But the opposite overstatement is just as wrong. Revival is not impossible in New York; it simply requires an affirmative act done with testamentary formality. There are three routes, and only three: a codicil which in terms incorporates by reference the prior Will or one or more of its provisions — note the words "in terms": naming the earlier Will, or dating it, or calling the new document a codicil to it, is not on the face of the statute the same thing as incorporating it by reference; a separate writing declaring the revival, executed and attested with the formalities of a Will; or republication — re-executing and re-attesting the prior Will itself, whether before the original witnesses or new ones.
So a client who tears up a new Will believing the old one springs back to life has, in most cases, died intestate instead.
When the second Will appears after probate has already been granted
This is the situation people actually find themselves in, and it has two moving parts that are usually confused with each other.
The first is the distribution. If a decree directing distribution was made before, and without knowledge of, the newly-found Will, the Surrogate has express power to open, vacate, modify or set that decree aside, to redirect distribution as justice requires, and to order the refund of property already distributed in error.
The second is the probate itself. The later Will has to be offered for probate in its own right, by someone entitled to petition. Where letters have already been issued and a Will is afterwards admitted, the decree admitting it must revoke the earlier letters.
Two honest cautions. Whether an existing probate decree must be formally vacated first, or is simply superseded by the decree admitting the later instrument, is a question of sequencing we work out with the particular Surrogate's Court rather than assume. And the court's duty on any probate is independent of whether anyone objects: before admitting a Will, the court must inquire particularly into all the facts and must be satisfied of the genuineness of the Will and the validity of its execution.
Getting the Will out of the hands of the person holding it
Families are often stuck one step earlier than the law: someone has the document and will not produce it.
New York provides a proceeding for exactly that, and its mechanics are narrower and stranger than its name suggests. Where it appears to the court — on its own motion, or on the petition of a person entitled to petition for probate — that there is reasonable ground to believe that any person has knowledge of the whereabouts or destruction of a Will, the court may order that person to attend and be examined. Note that the trigger is knowledge, not possession. Production and filing of the Will is a further step the court may order where it finds the document is in that person's possession or control.
There is also a costs provision that is rarely mentioned and worth knowing about: the court may impose the petitioner's reasonable attorneys' fees on a respondent who had no good cause to withhold production.
Where the original cannot be produced at all because it has been lost or destroyed, a different proceeding applies, and a presumption runs against the Will. We deal with that on our page on lost and destroyed Wills.
Two instruments in one proceeding
New York plainly contemplates more than one instrument being before the court at once. The probate petition must describe any other Will of the same testator on file in that court, and must name the legatees, devisees and fiduciaries under it. Process must issue to anyone adversely affected by another instrument offered for probate that is later in date, or that amends or modifies the one offered. And the court's obligation to satisfy itself of genuineness and due execution attaches to each instrument separately.
What there is not is some special test for choosing between two Wills. Each is proved, or not proved, on its own merits — and then the ordinary rules of revocation decide what survives.
What we do
We act for the family holding the newer Will and for the family holding the older one. The work is the same in both directions: establish what each instrument actually says about revocation, establish who was and was not cited, establish where the originals are and who has had them, and then decide whether the right instrument is a probate petition, an application to vacate that decree, a proceeding to compel production, or more than one of those at once.
If a second Will has surfaced, do not destroy anything, do not sign anything, and do not return the document to whoever gave it to you. Bring it in as it is.