Validity of Will

Question 1

What are the requirements of a duly executed will?

Answer 1

Remember the 7-point test:

1. Must be 18 years old
2. Signed by testator or by someone at the testator’s direction in her presence;
3. Testator’s signature must be at the end thereof,
4. Testator must sign the will OR acknowledge his earlier signature in the presence of each witness
5. Testator must publish the will - publication requires the testator to communicate to the witnesses that they are witnessing a Will (and not some other legal document), by declaring the document to be her “Last Will and Testament.”
6. Must be at least 2 attesting witnesss; AND
7. After the execution, ceremony must be completed within 30 days, which starts to run when the 1st witness signs (not when testator signs).

Question 2

What is a codecil?

Answer 2

A later amendment or supplement to a will, executed with the same formalities.

Question 3

Who has the burden of proving the due execution of the will?

Answer 3

The will proponent has the burden of proving due execution.

Attestation Clause - if appears below the testator’s signature line and above the witnesses’ signature lines, and recites all the elements of due execution. It provides prima facie evidence of the facts presented.

It is not, however, a substitute for live testimony. An attestation clause is merely corroborative of the witnesses’ testimony. A will proponent must still call the witnesses to testify or prove their signature.

Question 4

What is the interested witness statute?

Answer 4

The validity of the will is not affected if a will beneficiary is also an attesting, but the bequest to the witness is void unless:

1. There are at least 3 witnesses and 2 were not interested. Therefore, the signature of the witness-beneficiary is not needed to admit the will to probate so that witness beneficiary can receive their bequest OR
2. The interested witness/will beneficiary would be an intestate distributee, if testator would die without a will.

In this case a “whichever is least” rule applies - the witness-beneficiary takes the lesser of (i) the bequest under the will OR (ii) his intestate share.

Question 5

How are foreign wills treated in NY?

Answer 5

A foreign will is admissible to probate in NY if it was validly executed under:

a. The law of the state where the will was executed, regardless of the testator’s domicile at that time; OR
b. New York law; OR
c. The law of the state where the testator was domiciled, either when the will was executed or at death.

Think END.

This only guides whether the will is admissible to probate - once admitted, NY law governs construction and application of its provisions.

Question 6

What is a holographic will? Is it recognized in NY?

Answer 6

A holographic will is a will that is entirely in the testator’s handwriting, signed by the testator, but not witnessed.

It is void in NY.

Question 7

What is a nuncupative will? Is it valid in NY?

Answer 7

A nuncupative will is an oral will.

It is void in NY.