In re the Estate of Lewis
1974 N.Y. Misc. LEXIS 1717, 79 Misc. 2d 610, 360 N.Y.S.2d 761 (1974)
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Rule of Law:
For a will to be revoked by a physical act of cancellation, the markings must deface or obliterate the will itself or a vital part thereof, such as the testator's signature. Writings of revocation in the margins or on the back of the will, without being witnessed, are insufficient to effect a revocation.
Facts:
- Samuel J. Lewis executed a typewritten will on April 4, 1974, which was signed by him and two subscribing witnesses.
- At a later date, Lewis wrote in his own hand on a folded-over portion of the legal back, 'This will is void not to be in force Samuel 'J. Lewis'.
- Lewis drew a single inked 'X' across the entire first page of the will.
- On the second page, Lewis wrote, 'this Part to be inforced Samuel J. Lewis 5/14/74', referring to two articles containing dispositive provisions.
- Lewis struck through Article V with an 'X' and a line, but the text remained legible.
- Lewis wrote 'VOID Samuel J. Lewis 5/14/74' in the margin next to Articles VII and VIII and drew an 'X' through Article VII.
- The final page of the will, containing the signatures of the testator and the witnesses, was not altered in any way.
Procedural Posture:
- The will of Samuel J. Lewis, dated April 4, 1974, was submitted for probate in the Surrogate's Court.
- The court had to determine as a preliminary matter whether the will was valid or had been revoked by the testator's subsequent handwritten additions and markings.
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Issue:
Does a testator's act of writing 'void' in the margins and on the legal back of a will, drawing an 'X' across one page, and striking through some clauses, while leaving the signatures intact and affirming other clauses, constitute a valid revocation by cancellation under EPTL 3-4.1?
Opinions:
Majority - Brewster, S.
No. The testator's acts do not constitute a valid revocation by cancellation because they fail to comply with the strict statutory requirements. A revocation must be made pursuant to statute, and the court cannot substitute a testator's intent for the required act itself. Under EPTL 3-4.1, a written revocation must be executed with the same formalities as a will, including the signatures of two witnesses, which was not done here. A revocation by a physical act, such as cancellation, requires that the instrument itself or a vital part of it be defaced or obliterated. The court reasoned that writings in the margins or on the back of a will do not constitute cancellation. While an 'X' was drawn across the first page, which contained a significant bequest, the testator also explicitly affirmed other dispositive parts of the will and, most importantly, did not deface the signatures. The court concluded these actions demonstrated an intent to make partial, unwitnessed changes rather than to revoke the entire will, rendering the attempted modifications ineffective.
Analysis:
This decision reinforces the legal principle of strict compliance with statutory formalities for the revocation of wills. It clarifies that a testator's intent to revoke, no matter how clearly expressed, is legally ineffective unless accomplished through one of the precise methods prescribed by law. The case establishes a clear distinction between a valid cancellation, which requires obliteration of a vital part of the will (like a signature), and an invalid attempt at partial revocation or alteration. This precedent guides future courts to probate an original will, ignoring subsequent unwitnessed markings, if the markings do not rise to the level of a full statutory revocation.
