Legal Question in Wills and Trusts in New York
Will amendment
My parents have an old will and want to change only certain parts of it (the amount/belongings left to certain siblings). They do not want to pay to have another will drawn up and they were told by a friend that they could use a handwritten letter and have it notorized and that will amend the will. Is this true? I can't see how this signed/notorized letter would not be contested and there being some loophole that would render it invalid. If it is acceptable, how specific does the letter have to be? Would it have to list everything down to the last spoon in their house or could it just state all belongings within the residence/home go to ''so & so'' children? I'd appreciate any information you may provide.
2 Answers from Attorneys
Re: Will amendment
While I generally agree with Michael, there is part of NY law that permits "holographic" or handwritten Wills. However, these are easily contested, especially if they contain changes from the original document. Plus, due to its age, the original may not conform to current requirements for ease of probate (it may not be eleigble for self-proving probate and the original witnesses may no longer be available to "prove" it when submitted for probate). Thus, I concur with him that it is better if a new, current document be used (Will or Codicil), prepared by a professional and conforming to the legal requirements for probate. This cost will be far less than defending a contest if one is raised or the difficulty of probating a non-self-proving Will.
Re: Will amendment
Generally, the answer to your question is no. A handwritten letter that is notarized will not properly amend the will.
A will is valid not just by its language, or that it is notarized. A will is valid when it is signed and declared (published) before 2 disinterested witnesses. The witnesses should then sign an affidavit setting forth that the testator could read and write, declared the will to be his or her last will and testament, and signed the will before the both witnesses.
Since you want to amend your parent's will, you want a codicile. A codicile is an amendment to a will, that is signed in the same manner as a will. Generally, with computers being able to quickly reproduce documents, most attorneys shy away from the codicile and draft a new will.
For example, in my office I scan in the old will, use OCR software to create a MS Word document, and then make the changes. The lion's share of the time is having the testator execute the will since I need 2 witnesses and I have to go through the formalities of execution as set forth under NY law.
Therefore, I would suggest that you don't "cheap out" and retain an attorney to properly make the changes your parent's desire in the will.
Mike.
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