Legal Question in Wills and Trusts in New York
handwritten wills
Upon the passing of my significant other,(a 33 yrs relationship)in a handwritten will I was bequested with the 50% share of all jointly owned properties, also with a 34% of the pension fund and other assets. The remaining 66% was bequested to his two adult children.
When we consulted with a lawyer-friend she said that handwritten wills needed two signatures of wittneses to be valid. This lawyer also designated his eldest son as a executor of the estate, without any questions or further discussion to the effects.
It is my understanding that the uniqueness of a handwritten will is exactly the oposite. That it is so personal that the ''bequester'' is the only one to know its contents, until it is presented for probate. Also that the only requirements to validate a hand written will are, date, place, free will and signature.
Actually someone told me that, the signature of wittneses would indeed invalidate the will. Which version am I to belive ?
Can you please advise me on this subject ASAP,
Thank You,
3 Answers from Attorneys
Re: handwritten wills
The law regarding handwritten wills depends on the state in which it was drafted. In New York State they are not valid with very limited exceptions unless they have 2 witness signatures. Having 2 witnesses sign them now would invalidate the will had it fit into one of the exceptions because the witness signing after the fact would be a fraudulent witness and accordingly would lend the entire document as untrustworthy.
The truth is in New York the writing as you describe it is invalid for the purpose of probate.
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Re: handwritten wills
My condolences on the passing of your partner. 33 years is a long time. You must miss your partner very much.
Regarding the estate, any property held jointly is outside the estate and will. It passes to you directly. Since you seem to have a good relationship with his children and 1/3 of the pension is the only asset addressed in the will, you should have few real problems.
The will as you describe it is not valid in NY. The 'handwritten will' fell into disfavor in NY and is not by itself 'self-authenticating'.
The action of the attorney to appoint the eldest son the executor was very assertive. The choice of executor is not his, it is the court's decision. If the family suggests a person who is appropriate, the court will always confirm the choice. Other 'interested parties' have a right to contest the choice at that time or to petition for removal later.
The real question here is: what are your rights to the estate (your 1/3) in the absence of a valid will?
While the law in NY does recognize 'domestic partners', the recognition is still quite limited. So far just Workers Compensation Benefits. These things take time and it will be extended to probate/surrogate law within the near future.
You are welcome to contact me with any more questions or for a consultation for no fee.
Re: handwritten wills
Generally in New York, a valid Will must be witnessed by at least two witnesses. The following statute provides a narrow exception:
EPTL � 3-2.2. Nuncupative and holographic wills
(a) For the purposes of this section, and as used elsewhere in this chapter:
(1) A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses.
(2) A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by � 3-2.1.
(b) A nuncupative or holographic will is valid only if made by:
(1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged.
(2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.
(3) A mariner while at sea.
(c) A will authorized by this section becomes invalid:
(1) If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces.
(2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force.
(3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made.
(d) If any person described in paragraph (c) lacks testamentary capacity at the expiration of the time limited therein for the validity of his will, such will shall continue to be valid until the expiration of one year from the time such person regains testamentary capacity.
(e) Nuncupative and holographic wills, as herein authorized, are subject to the provisions of this chapter to the extent that such provisions can be applied to such wills consistently with their character, or to the extent that any such provision expressly provides that it is applicable to such wills.
It is possible that you may have certain rights if the Will is not valid. You may consider counsulting an attorney. Please feel free to contact me.
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