By Jason Stern
As a NY estate lawyer with more than two decades of experience drafting and probating NY wills for families I have come across and reviewed thousands and thousands of NY wills. Our office encounters all types of NY wills for probate from ancient wills, to out of state wills, to handwritten wills, to self-made wills, and even the occasional obliterated (marked up) will. While some of the above-mentioned wills may or may not be probatable there is one type of NY will that is among the most troublesome of testamentary documents, the holographic will. A holographic will is the legal term for a will that is handwritten, often by the testator themselves, and not typed. Normally, when an individual goes to their attorney to draft a NY will, the NY will is usually typed out by their NY estate lawyer. This process is referred to as drafting of the NY will by the NY estate lawyer along with the document’s execution which is customarily supervised by the NY attorney as well. Once executed the NY will is now deemed to be an attorney drafted instrument and benefits from something called the presumption of validity.
Should the NY will ever be scrutinized or subjected to a NY will contest proceeding the proponent, the one offering the document for probate who is normally the named executor, has the burden of proving due execution of the will Matter of McDonough, 201 A.D. 203, 193 N.Y.S. 734). When it is found that the execution of the NY will was drafted and supervised by a NY estate lawyerthere is a presumption of proper due execution of the NY will being offered for probate (Matter of Kindberg, 207 N.Y. 220, 100 N.E. 789, 1 N.Y. L. Cas. 469) also known as the presumption of validity. Additionly, the Ny estate attorney’s self-executing affidavit of due execution that accompanies nearly all NY estate lawyer drafted wills permits the court to infer proper execution Matter of Nelson, 141 NY 152, 36 N.E. 3. Once the record establishes a base case of due execution of the document the burden then shifts to the objectant to establish the existence of any triable issue of fact to deny the NY will probate Zuckerman v. City of New York, 49 NY2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595. This makes it extremely challenging if not impossible to attack a NY will on the basis of due execution once the proponent has established the document was duly executed and supervised by the NY estate attorney.
However, if the document offered for probate was not executed and supervised by a NY estate lawyer or worse, handwritten by the decedent themselves, proving the due execution of the document can be nearly impossible. No matter what, whether you are a NY estate lawyer or not, the NY estate law says the drafter of a NY will must comply with all the statutory requirements necessary when executing a will in NY as dictated within the NY estate law. Nevertheless, there is one exception to the above rule regarding holographic wills made by active members of the military service in times of war. The exception provides that wills created by active members of the military in times of war do not need to sign their names or even attest to the document as their last will in testament in front of two witnesses as prescribed by NY law. In fact in Matter of McAllister, 207 Misc. 804 (Kings Sur. Crt. 1955), the Surrogate’s Court probated the decedent’s letter, not a will, he drafted to his sister while training in boot camp during the Korean War stating his intention to leave her his estate should he die. This relaxed standard for handwritten wills only applies in rare cases when the testator is in active military duty thus waiving the usual formalities associated with creating a will. Absent this special set of circumstances, the law requires that every NY will must be signed at the end of the document by the testator, declared to be their last will and testament, also known as the publication requirement and witnessed by none other than two disinterested individuals. If all of these requirements are not met, the NY will fails and the estate goes by way of intestacy, meaning the next of kin would step up to inherit.
When a handwritten, holographic will does not substantially comply with the statutory requirements of due execution under the NY estate law, it will be denied probate. In Matter of Van Derzee, 124 Misc. 539, probate of a holographic will was denied probate when the witnesses stated that the testator never declared the instrument to be his Last Will & Testament and therefore lacked the requirement of publication. Additionally, neither witness testified that they actually had seen the decedent sign the document.
Estate of Kristoff St. John
Unless you are well versed in the daytime soap opera circuit, you have probably never have heard of Kristoff St. John. However as a NY estate lawyer specializing in NY will contests his estate has become a topic of interest. Kristoff St. John, spent his childhood acting on hit shows such as The Cosby Show before appearing for more than a decade in The Young and The Restless amassing a net worth of more than $10 million. On February 2, 2019 St. John passed away at the age of 52 due to complications from heart disease. Kristoff leaves behind two daughters Paris and Lola. In an unusual turn of events a handwritten will, holographic, was found in St. John’s handwriting within his home by his father. As a NY estate lawyer, with more than twenty years of experience probating and contesting wills in NY I can see many reasons why this will will be denied probate.
First the will leaves $100,000.00 of St. John’s estate to his father, who coincidentally discovered the will within the decedent’s home. This is somewhat problematic because the father is not disinterested and has a pecuniary interest in finding such a will that serendipitously includes himself as a beneficiary. Secondly, the will leaves the remaining balance of St. John’s $10 million estate to his two daughters with 75% to daughter Lola with an arrow pointing to the percentage and the remaining 25% allocated to his other daughter Paris with something scribbled out next the allocation. As such it is unclear from the face of this holographic will, what in fact St. John meant to bequest and to whom. Lastly, and most fatal to this holographic will is the fact the document is neither signed by the decedent Kristoff St. John nor was its execution witnessed as the document is absent the decedent’s signature thus never actually executed. As such, pursuant to the NY estate law the alleged holographic will of Kristoff St. John will certainly fail and ultimately be denied probate.
If you or a family member believe a will may be invalid or the product of undue influence within a NY estate it never hurts to ask the opinion of an experienced Queens estate lawyer to see what NY inheritance rights you may have under the NY will. Feel free to call the NY probate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NY probate lawyers have more than 60 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, Westchester, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.