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New York Contingent Will

One of the benefits of the many benefits of having a last will and testament as part of your estate plan is its flexibility. New York law allows you almost complete freedom in how you dispose of your property in your will. You can leave your property to whomever you want to. You can event put conditions on your testamentary gifts. A will with conditions or contingencies is call a contingent will. A contingent will or a contingent bequest is a strategy used when a testator would like a give to be made only if a specific event occurs. If the event does not occur, the individual the bequest is void. Typically contingent wills or contingencies in a will are designed to encourage beneficiaries to reach specific goals such as graduating from college or to live a certain lifestyle such as seeking treatment for an addiction. While New York law gives testators great latitude in how they choose to dispose of their probate estates, there are limits on contingent wills. If you have questions regarding conditions you would like included in your will, contact an experienced New York contingent will lawyer at the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience creating complex estate plans for clients, we have the skill and experienced to create a will with enforceable contingencies.

Contingent will

There are many reasons that a testator may want to include contingencies in his will. They all boil down to the testator wanting to make sure that the testator does something or does not do something. Some refer to adding a contingency to bequests as a “dead hand control.” Generally, the law allows a testator to make testamentary gifts contingent on the happening of certain events or a beneficiary accomplishing a certain goal. After all, it is the testator’s property to do with what he (or she) wants. Because property owners have the right to give, but generally beneficiaries do not have the right to receive, testators can stipulate practically any conditions to the gift, whether the gift is given in person, by will, or by trust.

For example a testator may want to encourage his children to reach certain educational goals. With his daughter he wants her to eventually take over the family business. So, the contingency on her bequest is that she get an MBA. Thus, the testator included the following contingency, “This bequest is effective only if my daughter, Christine, graduates from business school by the time she turns 27-years old.” For his son, his only concern was that he graduate from college and not take a long time to do so. So his will provided: “This bequest is only effective if my son, Jason, graduates from a 4-year college by the time he is 23-year-old.”

Some contingencies are designed to incentivize a beneficiary to make life changes such as seeking treatment for substance abuse, or to remain gainfully employed for a set amount of time.

As an experienced New York contingent will lawyer will explain, after the testator passes away, it would be up to the executor of the estate to confirm that the contingency was met be for distributing the testamentary gift. For example, if a bequest was contingent on graduating from school, then the executor would probably require the beneficiary to show records from school. If the contingency was seeking treatment for substance abuse, the executor may request records from the program or facility. If the beneficiary does not or cannot prove that the contingency was met, then the executor would not distribute the testamentary gift.

Unenforceable contingencies

While New York affords testators a great deal of latitude as to how to dispose of their property and the Surrogate’s Court’s goal is to follow the clear wishes of testators, there are limits to conditions that will be enforced. The contingency must be reasonable, must not be contrary to public policy, and must not be illegal. Contingencies that are typically not enforceable are:

  • Restraints on marriage. Generally, it is against public policy to attach a condition on a testamentary girl that discourages marriage. While not all conditions related to marriage are unenforceable, conditions that are deemed unreasonable are. For example, an unreasonable restraint on marriage would be a bequest that is contingent on the beneficiary not marrying at all or marrying only persons of a certain race. On the other hand, time limits on marrying and conditions related to the religion of the spouse have been enforced.
  • Encouraging divorce. Just as discouraging marriage is generally against public policy, so is encouraging divorce. The courts typically will not enforce testamentary gifts that are conditioned up the beneficiary divorcing his (or her) spouse.
  • Doing anything illegal. As a contingent will attorney in New York will explain, the court will not enforce a bequest that are conditioned upon the beneficiary doing something that is illegal or that otherwise encourages illegal acts.
Examples

Contingency related the beneficiary institution changing its purpose. In the Matter of Edwards' Estate, 446 N.Y.S.2d 551 (1982), John Edwards left a contingent gift to the Worcester Academy which was an all boys college preparatory school. His will specified that the Worcester Academy would receive the net income from the trust established by his will. The gift was contingent upon Worcester Academy remaining a college preparatory school for boys. The language in the will stated, “in case the said Worcester Academy ceases to be operated as a preparatory school for boys it shall thereupon become disqualified as a beneficiary and recipient of such income and payment of such income shall thereupon cease and terminate.”

Eventually the Worcester Academy began to admit girls. An alternate beneficiary, Christ Episcopal Church, filed a petition with the Surrogate’s Court arguing that the Worcester Academy violated the condition, voiding the testamentary gift. The Surrogate’s Court disagreed, stating that will did not specify that the school had to remain a boys only school. It had to continue to be a college preparatory for boys. As an experienced New York contingent will lawyer will explain, the courts are loathe to divest a named beneficiary of an inheritance. In the case of a contingent will, the courts are hesitant to void a bequest in the absence of clear evidence that the beneficiary violated the contingency.

Contingency related marriage and sale of property. Some testators add contingencies not as a way to control the behavior of the beneficiaries, but as a way to ensure that their loved ones have access to certain comforts of life for a period of time. For example, in In re Bonanno, 151 A.D.3d 718 (2017), the testator left her four children real property in Queens County. The decedent include a condition that the property is not be be sold "during the time when any one of [her] children is single and not married; and that any one of them resides in the said property." Once all of the children were married or when none of them lived on the property any longer, the property was to be sold and the proceeds divided equally among the children. The decedent’s two daughters challenged the condition, arguing the condition was an unreasonable restraint on the alienation of real property as well as an illegal restraint on marriage. The Surrogate’s Court disagreed. It found that the testator’s intent was not to prevent the beneficiaries from selling the property or from marrying, but to provide her single and unmarried children the use of the property while they remained single or until they chose to live elsewhere. They were free to sell the property thereafter.

Will requirements in New York

Regardless of whether or not the will contains conditional bequests, under New York estate law in order for a last will and testament to be valid and enforceable, it must meet certain requirements. The will must be in writing. The testator must sign it at the end, or direct another person to sign it for him (or her). That person must do so in the presence of the testator. The signing of the will must be witnessed by at least two competent witnesses. New York Laws, Estates, Powers and Trusts Law § 3-2.1(a). During the execution ceremony the testator must declare to the witnesses that the document that he signed is indeed his will. In addition, the testator must have testamentary capacity at the time the will is executed. This means that he must be at least 18 years old and must not be mentally incapacitated.

Contingency that never happens

Oftentimes the purpose of conditioning a bequest is to encourage the beneficiary to do something. Well, this does not always work. The beneficiary may not want or need the bequest badly enough to change his or her behavior. The beneficiary may not believe that the condition is enforceable. For a variety of reason, the contingency may never happen. If this happens, the bequest will fail. The other terms of the will remain valid. The property that would have gone to the beneficiary would be distributed based on the terms of the will. This might mean that the property will end going to an alternate beneficiary or a residuary beneficiary.

Contact the Law Offices of Stephen Bilkis & Associates

If you would like to include contingencies in your will, contact the Law Offices of Stephen Bilkis & Associates. With over 20 years of experience representing individuals, executors, fiduciaries, beneficiaries, and heirs, we have the knowledge and resources to help you create a will and overall estate plan that is consistent with your wishes and the requirements of New York law. Contact an experienced contingent will attorney serving New York our office at 1-800-NY-NY-LAW (1-800-696-9529) to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, County, Suffolk County, Queens, Bronx, Brooklyn, Long Island, Staten Island, and Westchester County.

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