Staten Island Contingent Will

One of the benefits of the many benefits of writing a will is that wills are flexible. There are many options as to the language that you can add to your will in order to dispose your property in the manner you choose. You can leave your property to whomever you want to. New York even allows you to add 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 gift to be made only if a specific event occurs. If the event does not occur, than that individual bequest will fail, while the remainder of the will would still be valid. Typically contingent wills or contingencies in a will are designed to encourage beneficiaries to reach specific goals such as reaching a specific education level or living a certain lifestyle such as seeking treatment for 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 Staten Island 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 experience to create a will with enforceable contingencies.

There are many reasons that a testator may want to include contingencies in his (or her) last will and testament. They all boil down to the testator wanting to make sure that the testator does something or does not do something. In other words, in adding contingencies the testator is attempting to exert control over beneficiaries. 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.

For example, a testator may want to encourage his grandchildren to reach certain educational goals. In his will he adds the same contingency for each of his grandchildren: “This bequest is only effective if my grandchild, ______________, obtains a bachelor’s degree before reaching the age of 25-years-old.”

Some testators are dissatisfied with the life choices of their beneficiaries. In an effort to encourage the beneficiaries to change, they require the beneficiaries to takes steps to change in order to benefit from the will. For example, a testator may require a beneficiary to seek treatment for alcohol abuse, or to remain gainfully employed for a specific length of time.

Contingent wills require extra work on the part of the executor. As an experienced Staten Island contingent will lawyer will explain, after the testator passes away, it would be up to the executor of the estate to confirm whether the contingency was met. For example, if a bequest was contingent on graduating from college, 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 that the beneficiary produce 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.

Testators can also include contingencies on gifs to institutions. For example, the contingent gift may be that the institution not change its mission. For example, a testator may leave money to a university as long as it has a study abroad program or as long as it has a nursing school.

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, not all contingencies are enforceable. 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. The law frowns upon contingencies that amount to restraints on marriage. A “restraint on marriage” is a condition that discourages marriages. While not all conditions related to marriage are unenforceable, conditions that the law deems unreasonable are unenforceable. 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 Staten Island 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.

If a contingency that is in a will is not enforceable, then the beneficiary would be entitled to the testamentary gift outright. The condition will be ignored.

Even if a contingency is valid, it may not work. For example, for a variety of possible reasons the beneficiary may not be willing to do what it takes to meet the requirements of the contingency. Thus, even an enforceable contingency may not be effective.

As an experienced contingent will attorney in Staten Island will explain, regardless of whether the will contains conditional bequests, under New York estate law for a last will and testament to be valid and enforceable, it must meet certain requirements. The will must be in writing. Oral wills are generally unenforceable. The testator must sign the will 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. At some point during the execution ceremony the testator must declare to the witnesses that the document that he (or she) 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.

If you would like to include conditions in your last will and testament, contact an experienced contingent will attorney serving Staten Island at 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 us at 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.