In re the Estate of Collins
458 N.Y.S.2d 987, 117 Misc. 2d 669, 1982 N.Y. Misc. LEXIS 4079 (1982)
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Rule of Law:
In New York, for interlineations on a will to effect a revocation, there must be a physical act of obliteration coupled with an intent to revoke the entire instrument; otherwise, if the original provisions remain legible and the testator intended only an ineffective change, the original will is admitted to probate, supported by the doctrine of dependent relative revocation.
Facts:
- On August 14, 1970, J. Richard Collins executed a three-page typewritten will.
- At some point after execution, J. Richard Collins made handwritten notations and interlineations on his executed will, specifically in paragraphs Third, Fifth, and Sixth.
- In paragraph Third, Collins altered a $500 bequest to the Allegany Library Association to a $10,000 bequest to Archbishop Walsh High School.
- In paragraph Fifth, Collins changed the bequest of his residuary estate from his wife, Cheryl Collins, into a trust for the benefit of his children with First Trust Union Bank, Wellsville, New York.
- In paragraph Sixth, Collins deleted the names of two persons designated as primary legal guardians for his children, leaving the names of two alternate guardians unexcised.
- Despite all the handwritten changes and interlineations, all of the original provisions of the will remained completely legible.
- J. Richard Collins died on February 5, 1982, at the age of 38, survived by his spouse, Cheryl R. Collins, and two infant children, Mary Kathryn Collins (age 14) and John Christian Collins (age 13).
- On or about February 11, 1982, a three-page document dated August 14, 1970, purporting to be Collins's last will, was found in the safe of Collins Memorials, Inc.
Procedural Posture:
- Following J. Richard Collins's death, no will was initially discovered.
- A three-page document purporting to be his last will, dated August 14, 1970, was found and offered for probate in Surrogate's Court.
- In the probate proceedings, the Surrogate's Court appointed Mary Jane Nevins as guardian ad litem to represent the interests of the decedent's two infant distributees.
- The guardian ad litem objected to the probate of the will due to handwritten notations and interlineations made by the decedent after its execution.
- At the guardian ad litem's request, the two attesting witnesses and attorney Jeremiah J. Moriarty, III (who discovered the will), were examined.
- The proponent of the will urged that the will be admitted to probate in its original form.
- The guardian ad litem urged a determination that the will be declared revoked, resulting in intestacy.
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Issue:
Does a testator's handwritten notations and interlineations on an executed will, made without statutory formalities, constitute a revocation of the will, or do they merely represent ineffective attempts to alter specific bequests, leaving the original, legible provisions valid?
Opinions:
Majority - Edward M. Horey, S.
No, a testator's handwritten notations and interlineations on an executed will, made without statutory formalities, do not constitute a revocation of the will when they merely represent ineffective attempts to alter specific bequests and the original provisions remain legible. The court found that there were no writings on the will indicating an intent to revoke the complete instrument, such as words like “will revoked” or lines drawn through the testator’s signature. Instead, the changes were limited to parts of particular clauses, and alternative provisions were inserted, which suggested an intent to change specific bequests rather than to cancel the entire will. The court distinguished this case from others where the totality of obliterations indicated revocation. Furthermore, the will was found in a corporate safe to which others had access, negating the presumption of intent to revoke that might arise if the will were in the testator’s sole custody. The court emphasized that revocation by physical act requires a physical act concurrent with the intention to revoke the entire will. Since the attempted changes were not made with the formalities prescribed by EPTL 3-4.1, they cannot be given effect. In New York, partial revocation without statutory requirements is not permitted, and if original provisions are discernible, the will is admitted in its original form. As an alternative basis for its decision, the court held that the doctrine of dependent relative revocation (DRR) is applicable in New York. Under DRR, if a will is canceled or mutilated in order to change it, and the attempted change fails for lack of due authentication, the revocation also fails, and the original will remains in force. The court explicitly accepted Justice Bergan's conclusion in Matter of Macomber that DRR exists in New York law, overriding a previous Surrogate's objection. Application of DRR serves the judicially established preference against intestacy, ensuring that the testator's overall intent to die testate is respected.
Analysis:
This case clarifies the stringent requirements for proving testamentary revocation by physical act in New York, emphasizing that the intent to revoke the entire instrument must unequivocally accompany physical alterations. It significantly solidifies the applicability of the doctrine of dependent relative revocation (DRR) in New York, offering a crucial mechanism to prevent intestacy when a testator's attempts to modify a will fail due to a lack of statutory formalities. The decision reinforces New York's policy against partial revocation without proper execution of a new will or codicil, underscoring the importance of strict adherence to EPTL requirements for testamentary instruments and highlighting the evidentiary weight of a will's custody in determining testamentary intent.
