09/20/2017










What Happens When There Are Two Wills – Which Takes Precedence?

Man Signing PaperworkThroughout a person’s life, one goes through many stages. A person may draft a will in his or her early 20’s, but as one acquires more assets, gets married, and even has children, his or her estate planning needs will change. This may result in drafting a new will. If you have executed a new will, you need to carefully assess whether any previous wills or documents out there will differ from the terms of your new will – and, you should take steps to ensure that both wills do not wind up in probate court and contradict one another.

When Two Wills Have Been Executed

Traditionally, during estate planning, if a person leaves two wills and both are offered into probate, the court will look at the circumstances to determine which will takes precedence, and which will be considered revoked. The best way to ensure that the latest will is used instead of an older will is to express that the most recent will is valid, and that all previous wills are considered invalid. By explicitly revoking one’s own past wills, the courts will then consider only the most recent will, instead of any past versions.

Issues can arise, however, when there is no clear statement as to which will is valid and whether or not previous versions will be revoked.

As a testator, you may have attempted to destroy a previous will or have left it behind, thinking that it wouldn’t be entered into probate upon your death. This results in an ineffective revocation. When the two wills are completely different from one another, the court may be forced to probate both – and they will usually figure out that the more recent will has revoked the first completely. If, however, differences are minor between the two wills, the courts will read the two to determine which is more effective and relevant.

How Courts Determine Which Will Takes Precedence

Courts will generally review the testator’s intent in each will to determine which should be probated and which should be revoked. To determine the meaning contained in the instrument, the courts will look at who drafted the will, contact that individual, review the circumstances under which the new will was drafted, and also review the words used to write the estate plan in the first place. The court will also review the testamentary capacity of the deceased at the time when each will was drafted – to make sure that a new will was not created when the testator was clearly incapacitated or unable to draft a will and comprehend his or her actions.

The testator must be aware of the nature of the acts that he or she is performing when creating a new will. If he or she has been deemed incapacitated, the new will may be listed as invalid and the previous will takes precedence in probate.

Protect Yourself from Past Wills – Contact an Estate Planning Attorney Immediately

If you have previous estate plans that have been drafted, having a good estate planning attorney during the creation of your new version is imperative. Your attorney can have explicit language in the new will revoking anything in past wills – and ensure that it is clear to the courts that the latest will is valid, and you are of sound mind to enter into such a decision.

To explore your options or to get started, contact the Law Office of Andrew M. Lamkin, P.C. today. Schedule a consultation by calling 516-605-0625, or request your consultation online.




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