New York Probate Lawyer Blog
A New York Will is a means by which a person can express his or her desires regarding the final disposition of property and the management of the affairs of his estate. New York Estates, Powers and Trusts (EPTL) section 1-2.19 defines a “Will’ as “an oral declaration or written instrument. . . . whereby a person disposes of property or directs how it shall not be disposed of . . . .”
The New York Probate Lawyer Blog has discussed in previous posts that the execution of a Will must comply with a number of requirements such as the necessity for the testator to sign the Will at the end of the document and that there must be “at least two attesting witnesses”. (EPTL 3-2.1).
The reason for strict Will formalities is to protect the intention of the testator and to establish the sanctity of the document that expresses a person’s final desires. The Surrogate’s Court always wants to be certain that fraudulent or invalid papers are not given judicial validation. Obviously, once a person dies, a Will may be the controlling statement regarding a person’s personal affairs.
Preparing a Will requires a full consideration of a person’s property and beneficiaries so that the proper provisions and directions are clearly set forth. It is a testator’s expectations that his fiduciaries, such as his Executors and Trustees, carry out the terms of the bequests or other dispositions spelled out in the document.
As a New York Estate Lawyer I spend time speaking with clients to understand their desires so that these matters can be fully and accurately set forth in their Will provisions. Of course, it is common that there is Estate Litigation where controversies arise concerning the meaning or interpretation of certain aspects of a Last Will.
Recently, there have been a number of instances where beneficiaries of charitable provisions have sought to modify the terms of bequests and abrogate the expressed desires of the decedent. In 1964 Edward Carter, who had been a Board of Regents Chairman, bequeathed to UCLA, property which was a rare example of a Japanese private garden. The garden was intended to be maintained in perpetuity. As reported by Charles A. Birnbaum on May 25, 2012 in the Huffington Post Los Angeles, UCLA, without advising the decedent’s family, obtained Court approval to allow the University to sell the property.
A similar scenario occurred in Ipswich, Massachusetts, as previously discussed in this Blog, where a colony of homes was the subject of a land trust established by a Last Will in 1660 for the benefit of the local schools with instructions that the property was not to be sold. As reported by Kathy McCabe on May 13, 2012 in the Boston Globe, the local voters appealed a Probate Court decision that allowed the sale despite the Will restrictions.
These two cases show that despite explicit directions and restrictions provided in a Will, beneficiaries and Courts may sometimes act contrary to a testator’s intent. Nevertheless, in most situations, the testator’s desires are followed. It is important to clearly spell out these desires so disputes can be avoided and, hopefully, a Court will abide by the specific terms of the testamentary instructions
New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in Estate Planning, Probate and Estate Settlement matters throughout the past 30 years in Nassau and Suffolk and other New York Counties. If you or someone you know is involved with or has questions about a New York Last Will, Probate or Estate, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.