On occasion, a person may make more than one will in their lifetime when life changes occur such as a spouse’s death, divorce, remarriage, addition or deletion of an heir or other circumstances that may require a change. A person can either change a will by doing a codicil (amendment) or revoking their current will and making a new one. Either way, the most recent valid will is the one that will be accepted by New York Surrogate’s Court during the probate process.
Validity of Will in New York
A will is considered valid when it is made and attested in accordance with the laws of the State of New York or under the laws of another state or foreign country that may be recognized in New York. New York does not recognize handwritten wills (holographic) or nuncupative wills (unwritten), except those made by a person who is serving active duty in the military or a mariner at sea at the time the testator made the will.
A valid will contains the following criteria:
• Testator was at least 18 years of age
• The will was signed and dated by the testator
• Properly witnessed and attested
• Made without coercion or under duress
• Testator was of sound mind at the time of making the will
Contest of a New York Will
If a beneficiary or heir believes that a will was made under duress, coercion, the signature of the decedent was forged, or the decedent was mentally incapacitated at the time the decedent made their will, the beneficiary, heir or interested party to the will may contest the will by petitioning the Court. The Court will set the matter for hearing. The person contesting the will must show up to the hearing or they forfeit their right to contest the will and receive an inheritance.
New York Spousal Rights
New York law recognizes a spouse’s right to inherit under a decedent’s will even if the decedent intentionally left the spouse out of the will or provided for less than the surviving spouse’s statutory share. Under New York law, a surviving spouse can file a right of election within two years from the date of the decedent’s death with the Court. The Court will automatically award the surviving spouse either the statutory $50,000 or one-third of the estate’s value after paying taxes, claims and expenses, whichever amount is deemed greater.
In order to avoid confusion about which will is valid, it is recommended that a person contact a New York Estate Attorney to help them amend or revoke their will so that their family and beneficiaries can inherit their rightful share of the decedent’s estate without having to incur unnecessary fees and costs to litigate the matter in Court.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.