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What are holographic wills and why are they bad? Estate of Evans

2
Oct

By Jason Stern

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As a highly experienced NYC estate lawyer with twenty years of experience handling these complex cases I am continually coming to grips with certain recurring issues.  One such issue involves holographic wills in NY.  While in law school it is instilled in students that holographic wills are bad and invalid within the State of New York.  By legal definition within the State of New York a holographic will is a document, testamentary in nature, written by the decedent themselves, unwitnessed, and neither executed nor attested to in accordance with all the formalities as prescribed within the EPTL 3-2.1 of the NY estate law.  However, contrary to what most NYC estate lawyers are lead to believe, holographic wills are accepted within the State of New York under certain circumstances pursuant to EPTL 3-2.2 of the NY estate law when drafted by either:

1) a member of the United States military while on active duty during a war,

2)  a person who accompanies such a member of the armed forces during active, armed conflict, or

3)  a mariner while at sea.

That being said, as a NYC estate lawyer I can tell you that 99.99999% of the time hand written last wills and testament are not drafted in the fashion mentioned above. It appears holographic wills are only valid in specific situations where someone is fearful for their life and is facing impending death under military or naval circumstances.  For the rest of us holographic wills are a great big no, no.  On the other hand, handwritten wills do pop up in NY estate practice from time to time and may in fact be valid under certain circumstances.  For instance, someone who believes they are dying has their attorney hand write a will with all the proper clauses and formalities pursuant to EPTL 3-2.1, and then has two witnesses sign their names as prescribed under NY estate law at the end of the document.   This document while not pretty, may in fact be valid.  However, the former document I just described would not be considered a holographic will in the State of New York.  While a true holographic will and the document described above are both handwritten that’s where their similarities diverge.  One document, a holographic will is drafted by the decedent themselves without any of the required formalities under the NY estate law, whereas the other document is drafted by someone other than the decedent in accordance with the formalities required by law.  Therefore, unless you’re a mariner at sea or on active military duty during a war, the holographic will is void.

Estate of Stephen Evans

Stephen Evans was a career doorman in a building located in NYC’s exclusive East Side neighborhood, Sutton Place.  For more than thirty years Stephen Evans not only worked at the building located at 430 East 56th Street in Manhattan but lived in a coop apartment within the building as well.  In a sense Stephen Evans’s friends and neighbors inside the building where he resided for thirty-five years were not just his co-workers but his family.  Evans neither married nor had children.  In fact, when Stephen Evans passed away this year he was only survived by  a single relative, nephew Michael Evans, whom he never liked, spoke to nor had dealings with.  So when Stephen Evans passed away leaving a will intending to bequest his entire $4.2-million-dollar estate to his co-workers at the building it was no surprise.  Unfortunately for those co-workers of Stephen Evans, he did not hire an attorney to draft his will but opted instead to draft his own holographic will as depicted in the picture above.

Once Evans’s will was finally offered for probate, it did not take long for Michael Evans, his estranged nephew, to enlist the help of a NYC will contest lawyer to challenge the validity of the holographic will.    In this case, the Surrogate decided that because the document was drafted by the decedent himself and not a NYC estate lawyer, nor properly witnessed and attested to in conformity with the requirements of NYC estate law this document was deemed invalid.  Unfortunately for the co-workers who were the obvious intended objects of Stephen Evans’s considerable estate none of them will receive a dime.  As such, the entire estate will pass to the estranged nephew whom Stephen Evans never spoke to.

Unlike most, as an experienced NYC estate lawyer I am never surprised by these mishaps.  I understand how for the lay person,  it may be enticing to assume that any signed document directing my estate to beneficiaries should be valid.  But this is not the case.    The formalities of valid wills within the State of New York encompass requirements going back hundreds of years that have to be met, and shown to be met, at the will’s execution otherwise the document fails.

The cold hard truth is that had Stephen Evans retained a NYC estate lawyer to draft his will the instrument would have received the attorney presumption of validity, been admitted to probate and his co-workers would have received their life changing $4.2-million-dollar bequest.

If you are thinking about drafting a will to protect your family it never hurts to ask the opinion of an experienced NY will contest lawyer.   Feel free to call the NYC will contest lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC estate lawyers have more than 50 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Richmond, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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