Oral Wills in New York

Oral wills, also known as nuncupative wills, are a type of will that is made verbally instead of in writing. While some states recognize oral wills as valid under certain circumstances, New York is not one of them. See EPTL § 3-2.2. In New York, a will must be in writing and signed by the testator, or person making the will, in the presence of at least two witnesses. This requirement is intended to ensure that the will accurately reflects the testator's intentions and is not subject to fraud or undue influence. Failing to meet these requirements can lead to complications and legal challenges that can prolong the probate process and even result in the invalidation of the will. It is therefore crucial for anyone creating a will in New York to ensure that it complies with the state's legal requirements. A knowledgeable and experienced New York estate planning lawyer at Stephen Bilkis & Associates can help ensure that your will is legally valid and that your wishes are carried out.

Oral wills, also known as nuncupative wills, are a type of will that is made verbally instead of in writing. In some cases, an oral will may be made when a person is in a situation where they are unable to make a written will, such as when they are gravely ill or facing an imminent threat to their life. However, New York law does not recognize oral wills as valid, even under such circumstances.

The requirement that a will must be in writing and signed by the testator in the presence of witnesses is intended to ensure that the will accurately reflects the testator's intentions and is not subject to fraud or undue influence. Failing to meet these requirements can lead to complications and legal challenges that can prolong the probate process and even result in the invalidation of the will.

One notable case that illustrates the importance of complying with New York's legal requirements for wills is Estate of Dittmar, 253 A.D.2d 521 (2d Dept. 1998). In this case, an oral will made by a testator shortly before his death was found to be invalid because it did not meet the formalities required by New York law. The court emphasized the importance of complying with the state's legal requirements for wills, which include being in writing, signed by the testator, and witnessed by at least two individuals.

Despite the potential challenges and complications associated with oral wills in New York, some individuals may still attempt to create an oral will in order to ensure that their wishes are carried out in the event of their death. However, as an experienced New York estate planning lawyer will explain, an oral will that does not comply with New York's legal requirements is generally not legally binding and can be subject to legal challenges and disputes.

New York law provides an exception to the general rule that oral wills are not valid. See EPTL § 3-2.2. Specifically, an oral will made by a member of the armed services may be recognized as a valid legal document, even if it does not meet the usual requirements for wills under New York law. The armed services exception applies when the oral will is made during a time of active military duty or naval service and when the person making the will is in imminent danger of death. Under such circumstances it would be impossible to consult with an estate planning attorney in New York to execute a written and witnessed will.

If these conditions are met, the oral will may be probated in New York. For example, a testator was a member of the armed services who made an oral will while serving in Iraq during the Iraq War. He was injured and believed that he was going to die, so he told a fellow soldier what he wanted done with his property. In such a case, a court would likely hold that the oral will was valid under the armed services exception because it was made during active military duty and the testator was in imminent danger of death.

While oral wills may be recognized in some states, they are not valid in New York. It is essential for anyone creating a will in New York to ensure that it meets the state's legal requirements, including being in writing, signed by the testator, and witnessed by at least two individuals. Otherwise, the will may be invalidated and the testator’s wishes not fulfilled. An experienced estate planning attorney serving New York can help guide you through the process of creating a legally valid will that accurately reflects your wishes and protects your loved ones' interests. Contact Stephen Bilkis & Associates today to learn more about creating a will that meets your unique needs and objectives. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Manhattan, Long Island, Brooklyn, Staten Island, Suffolk County, Westchester County, and Bronx.