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Estate, Powers and Trusts, § 3-1.1: Who May Make Wills of, and Exercise Testamentary Powers of Appointment Over Property

New York has requirements regarding how a will must be drafted and who may make a will. Under New York Estates, Powers and Trust, § 3-1.1, anyone who is at least 18 years old and is of "sound mind and memory" has the legal capacity to make a will. This means that when you make your will you must not have suffered from a condition that renders you mentally incapable of understanding what it means for you, your estate and your family that you are executing that particular will. There is a 3-part test to show testamentary capacity: (1) the testator must have understood the nature and consequences of executing a will; (2) the testator must have known the nature and extent of the property he (or she) owned; and (3) the testator must have known those who would be considered the natural objects of his bounty and relationships with them. This knowledge or understanding must have existed at the time testator executed his will. If you are concerned as to whether the will of a loved meets the requirements of New York law, contact an experienced New York will contest lawyer at the Law Offices of Stephen Bilkis & Associates.

Testamentary capacity

In addition to the testator being at least 18 years old, the other requirement for testamentary capacity is that the testator be of “sound mind and memory.” This means that at the time that he executor his will, he must not have suffered from a mental capacity such that he did understand what it means to make a will. You must understand that by executing a will specific people or institutions will receive your property upon your death. You must also understand the extent of your estate. While it is not necessary that you know the exact value of your estate, you should have a general idea of its value. You should also understand what is included in your estate. For example, if you have own a co-op in Manhattan, a house on Long Island, and a condo in Florida, you should understand that and the approximate value of each property. Finally, you must understand who your close family members are such as your spouse, children and grandchildren.

There are a variety of medical reasons that a person would lack the mental capacity to make a will. For example, individuals suffering from advanced Alzheimer’s and other types of dementia would likely not have the mental capacity to make a will. Similarly, those with severe intellectual disability would not have the mental capacity to make a will. However, as a New York will contest lawyer will explain, just because someone is diagnosed with dementia or some other condition that affects his mental capacity does not necessarily mean that he cannot legally make a will. If the testator has periods of “clarity” during which he does have the requisite mental capacity, then he would be able to make a will.

If it is anticipated that the testator’s mental capacity may be challenged, there are steps that can be taken in anticipation of a will contest. For example, having the testator’s physician present at the will signing and asking the doctor to write a letter or include notes in the medical records confirming the testator’s mental capacity.

Consequences of an invalid will

If a will was does not meet the requirements of New York probate law, then it may be declared invalid as a result of a will contest. However, the law does not allow anyone who chooses to file a petition objecting to a will. Only interested parties have the legal right to contest the validity of a will. Interested parties generally include beneficiaries and legal heirs. Your legal heirs are those who would have a right to a share of your estate in the absence of a will. If an interested party successfully petitions the court to contest a will based on the testator being less than 18 when the will was executed or not having testamentary capacity, the judge will have no choice but to declare the will invalid and throw it out.

Instead of your estate being distributed to the beneficiaries of your choosing, your assets will be distributed to your legal heirs according the rules of intestate succession. This means that regardless of your preferences, your property will go to close blood relatives, and not to the relatives, close friends, and charitable organizations that you would have wanted to receive your property.

These are consequences that can easily be avoided by having a properly executed will. To create a will and other estate planning documents that are specifically tailored to accomplish your personal goals, contact an experienced will contest lawyer in New York will to guide you through the process.


June executed her will when she was 40 years old. She left 50% of her estate to her husband, 25% to her brother, and 25% to her on daughter. She left nothing to her sister. When she was 75, June stated to show signs of dementia. By the time she passed away at age 85, her dementia was severe. She no longer was able to care for herself and she was not able to recognize her relatives. Her husband predeceased her. June’s sister objected to the will on the basis of June being incompetent. She argued if June was competent she would not have left her out of the will. June’s sister’s objection failed. There was no evidence that June was incompetent 45 years prior to her death when she executed the will. Mental competence is required at the time the will was executed, not at the time of death.

Related Statutory Provisions
  • What property may be disposed of by will: Estates, Powers and Trust, § 3-1.2
  • Who may receive testamentary dispositions of property: Estates, Powers and Trust, § 3-1.3
Estate, Powers and Trusts, § 3-1.1 Who may make wills of, and exercise testamentary powers of appointment over property

Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property.

Contact the Law Offices of Stephen Bilkis & Associates

If an interested party believes that a will is invalid due to a lack of testamentary capacity, that person has the right to file a will contest. A successful will contest will result in the will being invalidated and the estate being distributed based on the laws of intestate succession. If you are concerned about the validity of a loved one’s will, contact an experienced will contest lawyer serving New York at the Law Offices of Stephen Bilkis & Associates to discuss your concerns. We have years of experience successfully representing clients in estate matters. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Manhattan, Bronx, Brooklyn, Queens, Long Island, Nassau County, Staten Island, Suffolk County and Westchester County.

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