As a highly experienced NY estate lawyer with more than two decades of experience handling complex NY estate cases we occasionally encounter lesser known estate issues in addition to the more widely known ones. One rare estate issue we encounter is that of the hand written will also known as the holographic NY will. While a NY lawyer drafted and supervised will is always preferred, occasionally someone executes a NY will in their own handwriting. Most importantly any NY will not attorney drafted and supervised does not benefit from the attorney presumption of validity which deems the NY will valid until proven otherwise. However, the handwritten instrument, also referred to as a holographic NY will, presents some additional, unique problems when attempting to probate the instrument.
First, because a testator who handwrites their own instrument is often in a diminished capacity, the document’s contents rarely conform to the requirements of the EPTL, which must be met before the NY will is to be admitted to probate. 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.
The Court found in the Estate of Van Ness, 10 Misc 2d. 977 (Sarratoga Cty. Surr. Crt. 1958), that 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.
In these NY estate cases involving holographic wills the issue where courts are most likely to deny probate is based on the attestation clause. If you fail to include language revoking all prior instruments and fail to appoint an executor courts may brush these insufficiencies aside in favor of admitting the holographic will to probate. However in instances where the holographic NY will does not contain a conforming attestation clause with the requisite language the holographic NY will shall fail. An attestation clause must state that, each witness saw the testator sign the instrument in their presence and that they all knew the instrument to be the testator’s Last Will and Testament, at the time of its execution.
Estate of Larry King
Recently with the unfortunate passing of one of the greatest journalists in history, Larry King, it was revealed that he left behind a holographic will in his own handwriting. 87 year old Larry King whose career spanned a half a century of journalism, perhaps best known for his illuminating smile and signature suspenders, is believed to have succumbed to complications from Covid.
The document, hastily assembled fails to designate an executor, include the requisite attestation clause or language revoking all prior instruments. The 2019 instrument attempts to completely disinherit King’s estranged wife, instead designating his children as the 100% beneficiaries of his estate. The 2019 document was drafted just two months after King’s filing for divorce from his estranged wife Shawn. While Larry King’s estate is estimated to be in excess of $144 million dollars, almost all of King’s inheritance was left in trust meaning it will pass outside his probatable estate. However, King’s holographic will does create problems in determining who inherits the $2 million dollar portion of his estate that is not in trust and probatable. Strictly speaking, King’s 2019 holographic will is lacking the most important part of any testamentary instrument, the attestation clause and thus should fail. However due to the tremendous size of King’s overall inheritance I would not be surprised if all parties come to an amicable settlement in short order.
If you or a family member believe a will may be suspicious 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.