If the will depicted above does not look like a valid Last Will & Testament under the NY estate law to you it’s because it is not. First, it is handwritten, also known as a holographic will. By itself handwritten wills are not deemed invalid as long as they are executed with all of the formalities as prescribed under EPTL 3-2.1 of the NY Estate Law. Any NY estate lawyer can tell you for a NY will to be deemed properly executed the document must be signed by the testator at the end of the document and witnessed by at least two attesting, uninterested witnesses. The document must also contain an attestation clause and clause revoking all prior testamentary instruments. So even a handwritten will must comply with the aforementioned requirements by statute.
As a NY estate lawyer with two decades of experience probating NY wills for families, there have been instances where I have encountered handwritten wills in NY that were deemed to be valid. One such document was executed at the decedent’s hospital deathbed where his NY estate lawyer handwrote the document and witnessed it with her associate. The document was signed at its end by the testator, and then both witnesses subscribed their names and addresses as attesting witnesses. The document drafted by the testator’s NY estate lawyer also contained an attestation clause, without which the NY will would have been denied probate.
However, pursuant to EPTL 3-2.2, there is a very narrow provision under the NY estate law permitting a holographic, handwritten will, to be admitted to probate without the proscribed requirements as mentioned above. This exception is a relic from 19thcentury maritime law whereby many sailors were lost at sea or in military campaigns and allowed for relaxed adherence to the laws governing the execution of wills. In limited circumstances a handwritten, holographic will, would be accepted within the State of New York pursuant to EPTL 3-2.2 of the NY estate law under very limited situations when drafted by either:
1) a member of the United States military while on active duty during a war,
2) a person who accompanies such a member of the armed forces during active, armed conflict, or
3) a mariner while at sea.
Therefore, if a NY will is handwritten by either a mariner or serviceman at a time of war, whereby the testator has a reasonable expectation of imminent death, many of the formalities of the NY estate law may be dispensed with.
However, any NY estate lawyer will tell you, absent these specific extenuating circumstances as mentioned above it is always best to have your NY estate lawyer draft and supervise the execution of your NY Last Will & Testament. Handwriting your own will, also referred to as a holographic NY will, presents a multitude of additional, unique problems when attempting to probate the instrument. In other words, unless you’re in the active military during wartime your NY will better be signed by two attesting witnesses and have an attestation clause along with all the other requisite language.
For example, many times a holographic will may fail to designate a nominated executor within the document and/or a proper attestation clause as required under the NY estate law or language revoking prior instruments. The omission of any of which could cause serious NY estate litigation to ensue. In the Estate of Van Ness, 10 Misc 2d. 977 (Sarratoga Cty. Surr. Crt. 1958), where the decedent handwrote their own will while failing to include an attestation clause, required language revoking prior instruments, and language appointing an executor, the NY will was denied probate.
Estate of Thomas Kinkade
Thomas Kinkade died at the age of 54 in April of 2012. Kinkade, an artist by trade, developing an almost cult like following within certain communities for his paintings. Most of Kinkade’s work depicted serene gardens, villages, streams and churches which helped him amass a $60 million dollar fortune. However by 2012 Kinkade’s personal life was anything but serene. In the years leading up to his untimely death Kinkade’s wife of 30 years had left him and he began binge drinking. Kinkade continued to reside in the couple’s $10 million dollar Monte Sereno, California Estate with his 48 year old girlfriend Amy Pinto. It is here in his Monte Sereno mansion where Kinkade would ultimately succumb to a lethal cocktail of drugs and alcohol in 2012. Thereafter, Amy Pinto had her estate lawyers file what purported to be Kinkade’s holographic Will for probate. The document depicted above, Kinkade’s holographic will was filed by Pinto in an effort to take control of Kinkade’s $60 million dollar estate.
Unlike NY estate law, California does recognize holographic wills under a wider range of circumstances than the New York Estate Law does. As you can see Kinkade’s alleged holographic will was not witnessed and is lacking an attestation clause. Both of which would be fatal to any attempts to probate the document under the NY Estate Law. However California’s more relaxed rules governing holographic wills allowed Kinkade’s girlfriend to settle this estate for an undisclosed sum, the amount of which we may never know. That being said, any experienced NY estate lawyer will tell you this result would not have been possible in New York. As such it is rarely a good idea to draft your own NY will. Rather than take matters into your own hands, enlisting a NY estate lawyer to draft your will not only protects your interests but your family’s interests for generations to come.
If you or a family member believe a will may be invalid within a NY estate it never hurts to ask the opinion of an experienced Queens estate lawyer to see what NY inheritance rights you may have under the NY will. Feel free to call the NY probate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NY probate lawyers have more than 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange and Dutchess.
