Wills

What is a Will?

A will, or last will and testament, is a legal document that outlines how a person’s property should be distributed after their death. In New York, the laws governing wills are outlined in the New York Consolidated Laws, Estates, Powers and Trusts Law (NY EPT Law)

How to make a valid will in New York: 7 requirements

To make a valid will in New York, there are seven requirements:

1. The testator must be at least 18 years old and of sound mind.

2. The will must be signed by the testator, or by someone at the testator’s direction and in their presence. If someone signs on behalf of the testator, they must also sign as a proxy and include their address.

3. The testator’s signature must be at the end of the will. Any additions made after the signature will not be legally valid.

4. The testator must sign the will or acknowledge their earlier signature in the presence of each witness.

5. The testator must “publish” the will, meaning they must communicate to the witnesses that it is their last will and testament.

6. The will must be signed by at least two attesting witnesses.

7. The execution ceremony must be completed within a timely manner.

It is important to note that the requirements for a valid will may vary depending on the specific circumstances and jurisdiction. Consult with the attorneys of Murphy, Schisano & Rosado to ensure compliance with all legal requirements and to create a valid and enforceable last will and testament.

A Self-Proving Affidavit

The use of a self-proving affidavit can streamline the probate process by eliminating the need for witnesses to testify about the validity of the will. Instead, the affidavit serves as evidence that the will was properly executed, and the court can usually accept it without further proof.

To create a self-proving affidavit, the testator and witnesses must all sign the affidavit in the presence of a notary public or other authorized official. The affidavit should state that the will was executed in accordance with New York law, including the requirement for two witnesses over the age of 18. The affidavit should also include a statement that the witnesses believe the testator was of sound mind and under no undue influence at the time of signing.

It is important to note that even with a self-proving affidavit, there may still be situations where witnesses may be required to testify or provide additional evidence. Your attorneys at Murphy, Schisano & Rosado will ensure that your will is properly executed and any necessary documentation, such as a self-proving affidavit, is included.

Will interpretation – What happens if there is a confusing or ambiguous phrase in the will?

If there is a confusing or ambiguous phrase in a will, New York law allows for interpretation of the intent by looking at the document’s “plain meaning.” However, if the plain meaning is unclear due to conflicting meanings or confusion, extrinsic evidence may be allowed to determine the meaning. Extrinsic evidence can include details of the facts and circumstances surrounding the creation of the will, as well as any evidence provided by third parties.

If the extrinsic evidence still does not resolve the ambiguity, that specific portion of the will may fail because there is no clear beneficiary or clear meaning of the document.

Changes to a will

In terms of making changes to a will, there are two methods allowed under New York law. The testator can either write a new will that revokes the previous will, or they can make a codicil, which is an amendment to the original will that only changes certain parts of it. A codicil acts as a supplement to the original will and must identify the will it is amending and clearly state the changes or additions being made. It is recommended that an attorney prepare this document to ensure that the codicil is drafted correctly and complies with all legal requirements.

Revocation

In New York, a will can be revoked by the testator through physical destruction or by creating a new will that explicitly revokes the previous one.

If the testator decides to physically destroy the will, it must be done with the intent of revoking it. This can include burning, tearing, cutting, or otherwise mutilating the document.

Creating a new will that explicitly revokes the previous one is another way to revoke a will. The new will should contain a statement or clause that expresses the intention to revoke all prior wills and codicils. This ensures that the previous will is no longer valid.

It is important to note that any changes or revocations to a will should be made in accordance with the legal requirements of New York to ensure their validity and prevent potential disputes or confusion in the future.

Revocation by Marriage

Under New York law, getting married will automatically revoke a will, unless the will specifically states that it was made in contemplation of marriage. If you get married and have a will, it is important to review and update it to reflect any changes in your circumstances.

Revocation by Divorce

Divorce or annulment of a marriage will have certain effects on a will. In New York, if you get divorced, any provisions in your will that favor your former spouse will be revoked. However, the rest of the will remains valid. It is still recommended to review and update your will after a divorce to ensure that your wishes are properly reflected.

It is important to keep in mind that this is a general overview of some aspects of New York wills and may not cover all the specific requirements or details. Consulting with your attorneys at Murphy, Schisano & Rosado will ensure compliance with all legal requirements in creating a valid and enforceable last will and testament.