Statutes in New York, New Jersey, Connecticut, and Massachusetts provide that a will can be revoked if the testator executes a subsequent will, or if the testator, or someone in the testator's presence and at the testator's direction, performs a revocatory act on the will.
Legislation in those four states has also addressed the impact of divorce on wills and trusts. In all of these states, unless the testator has expressly provided otherwise, divorce serves to revoke a property disposition to a former spouse, a power of appointment in favor of a former spouse, and the appointment of a former spouse as a fiduciary. The relevant statutes in New Jersey and Massachusetts also treat divorce as having revoked any disposition made to a former spouse's relatives. The statutes in New York and Connecticut do not go this far.
In In re Lewis, 2015 N.Y. Lexis 1292; 2015 NY Slip Op 04674 (N.Y. June 4, 2015), the New York Court of Appeals recently considered whether a will naming the decedent's ex-husband's father as alternate executor and beneficiary was revoked.
Decedent died in March 2010, three years after divorcing her husband. Pursuant to the laws of intestacy, decedent's property was to pass to her family. However, decedent's ex-husband's father filed a petition in the Jefferson County Surrogate's Court to probate a 1996 will executed by decedent. The 1996 will bequeathed all of decedent's property to her ex-husband. Decedent's ex-husband's father was also named in the 1996 will as an alternate executor and beneficiary. EPTL 5-1.4 disqualified the ex-husband from serving as executor and from taking under the will. The ex-husband's father, however, was not similarly precluded under New York law.
During the probate proceedings, the decedent's ex-husband testified that the will was executed in quadruplicate, with each document meant to possess the force of an original. The wills were stored at the couple's Texas home, their New York home (where the decedent resided after the divorce), decedent's ex-husband's parents' home, and a safe deposit box. Decedent's friend testified that decedent intended to execute a new will in 2007 after her divorce and that she had seen and discussed with the decedent what she thought was a 2007 will with a provision revoking all prior wills and codicils. However, after a post-mortem search of the decedent's residence and possessions, no such will was found. Because the alleged 2007 will was never found and the decedent's friend did not witness the execution of the alleged 2007 will, the Surrogate's Court concluded it was bound by the 1996 will and admitted the will to probate. The Appellate Division affirmed and the Court of Appeals granted leave to appeal.
The Court of Appeals reversed and remanded, holding that the decedent's parents' claim that the 1996 will was revoked by the 2007 will was properly rejected but that the failure of their claim did not mean that the 1996 will was proved. The Court concluded that whether the 1996 will had been revoked by other means, such as by the act of the testator with revocatory intent, was a question that needed to be answered before the 1996 will was admitted to probate. The Court noted that a presumption arises that a will has been revoked by destruction if the will cannot be found posthumously. The presumption "stands in the place of positive proof" and must be rebutted by the will's proponent. In this case, the presumption was strong as a result of the fact that the 1996 will left all of decedent's property to her ex-husband, and the 1996 will was not found in decedent's New York home where it was known to be kept at one time. In light of the presumption of revocation, the Court was "left with a will admitted to probate upon a record sufficient only to disprove it." The Court held that the Surrogate should have insisted on the presentation of all duplicate original wills to compare the duplicates and make a determination about their import. Accordingly, the Court remanded the case to the Surrogate's Court to hear and weigh evidence as to the duplicate wills and allow petitioner an opportunity to rebut the presumption of revocation.