A common topic for dispute of an estate plan in New York is whether the document is valid or not because of the way it was formulated. Not everyone has the time to take the necessary steps to have a conventionally valid will. However, those who do not can still create an estate plan that will address their property after they are gone. Knowing how to create a will without going through the commonly known means is imperative for many people.
If the testator did not write the will, it is known as “nuncupative.” The will and its provisions must be clearly established by two witnesses for a nuncupative will to be valid. A will that is written by hand is called a holographic will. This type of will is written in the testator’s handwriting and does not have to adhere to the formal requirements that are generally required.
With a nuncupative or holographic will, it is valid if it was made by a member of the U.S. armed forces while in service during a war. If the testator is in the armed forces at the time and they are engaged in another type of conflict, then a nuncupative or holographic will will be held valid. A will written by a mariner at sea would also be valid.
The nuncupative or holographic will is invalid if: it was made by a member of the armed forces and one year has passed; or it was made by a mariner at sea and three years have passed from when they were at sea. Some people may not have testamentary capacity at the time at which the will expires, so the will would then be valid for one year from when they regain testamentary capacity.
People who are concerned about any aspect of a nuncupative or holographic will should obtain legal advice. A legal professional experienced in estate planning and estate administration can help.
Source: nysenate.gov, “Section 3-2.2,” accessed on April 3, 2018