Wills are perhaps the most basic and simple form of passing on property and the transmission of wealth from one generation to the next. It allows the testator to give away the property and money that they own and have on hand as they see fit. A person can write a person out of a will, with certain limitations, include another non-child in the distribution and treat them as if they were a child or even leave it all to a charity. While the vast majority of wills are honored and respected without question, there is always the possibility that a potential heir may contest a will. In the event a will is invalidated a Surrogate’s Court must still resolve the issue of how and to whom shall the property be distributed. One possible way of dealing with issue of distributing the property if a will is invalidated is to utilize the state’s default, intestate distribution scheme. Another means is to revive a previous, otherwise valid will. This latter method is called the doctrine of dependent relative revocation.


The doctrine of relative revocation holds that if a testator revokes a prior will in a second will, but the second will is invalidated for any reason, the previous will is revived. The animating consideration is that the invalidation of the previous will is predicated on a new distribution scheme that is conditional in nature. When the condition is not fulfilled, the revocation will not be given effect. Courts look to see, therefore, if the revocation in the previous will was conditional in nature, in other words, was the revocation premised on the thought that the new will can replace the old or if the revocation was absolute in nature. The case of The Matter of Sharp shows what language Courts look to, to determine if a revocation was absolute. The Matter of Sharp, 68 A.D.3d 1182 (N.Y. App. Div. 2009). The case of The Matter of Macomber shows how Courts determine what language is necessary to find a subsequent document to be conditional in nature. The Matter of Macomber, 274 App div 724 (N.Y. App.Div.1949). The doctrine of relative revocation is not found in statutory law, only in case law as a rule of construction to help resolve ambiguities, when the usual extrinsic evidence is invalid.


One possible way to avoid the likelihood of this happening and to include disincentives in the terms of the will against a will challenge is to include a no-contest clause. No-contest clauses are generally disfavored by most states. In New York, no-contest clauses are disfavored although permitted; as recently as  2009 a Surrogate’s Court enforced the terms of a no-contest clause. Matter of the estate of Joseph Singer, 13 N.Y. 3D 447 (N.Y. App. Div. 2009). Given that the no-contest clauses are disfavored, Surrogate Courts strictly construe them.

If you are administering an estate that is or may be subject to a will contest or perhaps want to contest a will, it is imperative that you speak with experienced estate planning attorney and perhaps consider a trust instead. Trusts are more difficult to invalidate than wills.

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