New York Probate Lawyer Blog
The execution of a New York Will must comply with the requirements of the estate statutes. It is important to follow these rules so that the Will be validated and admitted to probate. There have been numerous posts in the New York Probate Lawyer Blog explaining the need for the proper execution of Wills. The basic estate law dealing with this matter is Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of wills; formal requirements”.
This statute sets forth a number of requirements including: (i) that a Will be signed at the end of the document: (ii) that there be at least two witnesses; (iii) that the testator sign the Will in the presence of the witnesses; and (iv) that the testator declare to the witnesses that he is signing his Will.
The Courts are very strict regarding enforcement of these requirements. When a purported Will is found by the Surrogate’s Court not to have been duly executed, the paper is denied probate. Thus, the decedent’s intentions that may have been expressed in such writing cannot be carried out.
While it may take a lot of time and effort to have an estate plan created and the documents formally signed with witnesses, the effort is necessary to prevent the Will from being invalidated. It is a good idea to talk to a New York City Estate Lawyer regarding these matters.
The result of failing to follow the formal requirements can result in a Will Contest and estate litigation. The various grounds upon which a Will can be contested include lack of due execution, undue influence and lack of testamentary capacity.
A recent Bronx estate case entitled Estate of Hutchinson, decided by Bronx Surrogate Nelida Malave-Gonzalez on June 4, 2018, provides an example of what happens when the statutory formalities are ignored. In Hutchinson, the decedent decided to make certain handwritten changes to her Will after it had been signed and witnessed. The Will had handwriting that changed certain bequests and also changed the appointed Executors. The Court found that the handwritten changes were not made in accordance with the rules provided by EPTL 3-2.1. As a result, the Court did not give any effect to these modifications and admitted the Will to probate in its original form without the handwritten alterations. While the handwriting may have reflected the desires and intentions of the decedent, the Court could not validate these modifications since the writings were not properly witnessed nor done in accordance with the estate law requirements.
I have represented many individuals in probate cases and Will modification matters. As can be seen from Hutchinson, it is always a good idea when preparing an estate plan and a Will to seek professional advice and to follow the legal formalities.
Call me now for a free review if you have a question or issue regarding a Probate matter or estate plan. An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: Jules.Haas@verizon.net, for an initial consultation.