## Facts

- After Samuel J. Lewis’s death, a typewritten will dated April 4, 1974 was offered for probate in the Surrogate’s Court, Westchester County.
- The will was executed with the testator’s signature and the signatures of two attesting witnesses, and it contained an attestation clause.
- Part of the will’s legal back was folded over the top of the first page. On that folded-over portion, in the testator’s handwriting, appeared a statement that the will was void, signed “Samuel J. Lewis,” but not dated.
- An “X” had been drawn across the will’s entire first page.
- On the second page, between Articles III and IV (dispositive provisions), the testator wrote a signed and dated notation stating that “this Part” was “to be inforced.”
- Article V (appointment of fiduciaries) was marked with a lightly inked “X,” but the text remained readable.
- Article VI was left untouched.
- Article VII (naming an attorney to handle probate) was marked with an inked “X” and accompanied by a signed and dated notation stating it was “VOID,” with a marginal note indicating that “James” should make the choice.
- Part of Article VIII was struck through with a line and accompanied by a signed and dated “VOID” notation in the margin.
- The final page containing the signatures of the testator and the witnesses and the attestation clause was not altered.

## Issues

1. Did the handwritten statement that the will was void constitute a revocation “by writing” under EPTL 3-4.1(a)(1)(B) even though it was not executed with witness formalities?
2. Did the inked X-marks and strike-throughs constitute a revocation “by act” (cancellation/obliteration) under EPTL 3-4.1(a)(2)(A), and if so, did they revoke the entire will?
3. If there was no total revocation, which provisions (if any) were effectively revoked by the cancellations, given the testator’s signed and dated notation that certain dispositive provisions were “to be inforced”?

## Decision

- The court held the handwritten “void” statement did not revoke the will by a later writing because it was not subscribed by at least two witnesses as EPTL 3-4.1(a)(1)(B) requires.
- The court determined the markings did not show a complete revocation of the will by act, in part because the signature/attestation page was untouched and the testator also wrote a signed and dated instruction that certain dispositive provisions were to remain in effect.
- The court treated the ink cancellations and “VOID” markings on specific articles as effective revocations of those marked provisions to the extent the will itself was defaced with revocatory intent.
- The will was admitted to probate as a duly executed will that had been revoked only in part, with unrevoked provisions remaining operative.

## Legal Principles

- A will may be revoked only in the manner authorized by EPTL 3-4.1; a testator’s intention to revoke does not substitute for the statutory method.
- Revocation “by writing” requires execution with will-like formalities, including subscription by at least two witnesses. An unwitnessed signed note stating the will is void is not enough.
- Revocation “by act” requires defacement or obliteration of the will itself (for example, cancellation marks on the testamentary text or other parts of the instrument); a writing placed only on the margin or back, without defacing the will, will not by itself amount to cancellation.
- The extent and placement of cancellations matter: markings that do not affect the signature/attestation page and that appear directed at particular clauses support partial rather than total revocation.
- New York recognizes partial revocation by cancellation when the instrument shows revocatory intent aimed at particular provisions and leaves other provisions intact.

## Conclusion

Matter of Lewis held that the decedent’s signed but unwitnessed statement that the will was void did not revoke the will under EPTL 3-4.1’s writing method, and that the physical markings on the will did not cancel the instrument as a whole; instead, the court admitted the will to probate while giving effect to revocations only as to the provisions the testator physically cancelled and labeled void, leaving the remaining provisions in force.


Matter of Lewis, 360 N.Y.S.2d 761 (1974)