Estate, Powers and Trusts, § 3-2.2: Nuncupative and Holographic Wills

A will is a document that dictates the manner in which your assets will be distributed after your death. In order for a will to be legally enforceable in New York and admitted to probate, it must be executed with certain formalities. In the absence of these requirements, the Surrogate’s Court may be forced to reject the will and proceed as if the will did not exist. With rare exceptions, a New York will must be written and witnessed. However, nuncupative and holographic wills are exceptions to these general requirements. If you have questions about whether your will was properly executed, contact an experienced will attorney serving New York at the Law Offices of Stephen Bilkis & Associates.

As described in Estate, Powers and Trusts § 3-2.2, a holographic will is a will that has been handwritten by the testator and was not attested to by two witnesses, while a nuncupative will is an oral will that was witnessed. Because of the unique, perilous circumstances members of the armed forces and mariners may find themselves in, nuncupative and holographic wills will be considered valid and admitted to probate only in the limited circumstance where it was made by a member of the United States armed forces during a time of armed conflict, made by someone accompanying the armed forces during a time of armed conflict, or made by a mariner out at sea.

However, as a skilled New York will attorney will explain, an important point to keep in mind is that nuncupative and holographic wills become invalid 1 year after the testator ceases serving with the armed forces, or in the case of a mariner at sea, 3 years after the will was made. For this reason it is important that if you make a nuncupative or holographic will, after you have left the armed forces or are no longer a mariner at sea you make another will that is compliant with the law.

The general rules for a will to be valid in New York include:

• Must be signed by testator. The person making the will must sign it at the end, or must direct another person to sign it for him (or her) while in his presence.
• Must be witnessed by two people. The signing of the will by the testator must be witnessed by two disinterested people. Or, if the testator does not sign it in the presence of the witnesses, the testator must acknowledge to the witnesses that it is his signature. The witnesses cannot also be beneficiaries. If a witness is a beneficiary, the bequest to that witness is void, unless there are two disinterested witnesses besides the witness who is also a beneficiary

In addition, the testator must have been at least 18 years old at the time the will was executed and he must have been of “sound mind and memory.”

As a New York will lawyer will explain, if you have a nuncupative of holographic will and it is declared invalid because it was not made under the circumstances described in New York’s probate statute, then your estate will be distributed based on the rules of intestate succession. This means that your property will go to your legal heirs and not necessarily to those who you want to receive it.

Burton loved technology. He thought it would be a cool idea to make a video will. So he created the will and spent hours editing it, adding music and captions. He emailed the video to his attorney as well as to several family members. Burton was very generous and left property or money to 15 different people, including employees and friends. When his attorney received the video, he immediately called Burton and explained that his video will was not valid, and explained the requirements for executing a will in New York. Burton was disappointed, but made an appointment to execute the will. Burton passed away before his appointment with his attorney. Burton’s video will is not valid. Because he never executed a proper will as required by New York law, Burton was intestate and the laws of intestate succession would apply.

1. Execution and attestation of wills; formal requirements: Estates, Powers and Trust, § 3-2.1
2. Who may make wills of, and exercise testamentary powers of appointment over property: Estates, Powers and Trust, § 3-1.3

(a) For the purposes of this §, and as used elsewhere in this chapter:

(1) A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses.

(2) A will is holographic when it is written entirely in the handwriting of the testator, and is not executed and attested in accordance with the formalities prescribed by 3-2.1. (b) A nuncupative or holographic will is valid only if made by: (1) A member of the armed forces of the United States while in actual military or naval service during a war, declared or undeclared, or other armed conflict in which members of the armed forces are engaged. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict.

(3) A mariner while at sea. (c) A will authorized by this § becomes invalid: (1) If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces. (2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force. (3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made. (d) If any person described in paragraph (c) lacks testamentary capacity at the expiration of the time limited therein for the validity of his will, such will shall continue to be valid until the expiration of one year from the time such person regains testamentary capacity. (e) Nuncupative and holographic wills, as herein authorized, are subject to the provisions of this chapter to the extent that such provisions can be applied to such wills consistently with their character, or to the extent that any such provision expressly provides that it is applicable to such wills.

If you want to be sure that your property is distributed in the way you want it to be distributed, then it is critical that you have a will that is written and executed in manner that is consisted with New York Estates, Powers and Trusts Law. While there are certain circumstances when wills that are not witnessed in the typically manner may be valid, such cases are rare. The experienced will attorneys in New York at the Law Offices of Stephen Bilkis & Associates have significant experience helping clients create and execute wills and other estate documents that are consistent with New York law and that are customized to meet their individual goals. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.