Does a Will Have to be in Writing and Witnessed?
As a general rule, a will must be in writing and properly witnessed to be valid in New York. You should assume that this is the sort of will you will need to make to ensure that your property is disposed of as you wish. Unlike many states, New York does not generally recognize handwritten, unwitnessed (holographic) wills under ordinary circumstances. An exception applies if the will was executed in a state that recognizes holographs, or was executed at a time when the testator was domiciled in a state that recognizes them.
New York is one of very few states that will recognize not only holographic, but also oral (nuncupative) wills in special circumstances. Nuncupative wills are also sometimes called “soldiers’ and sailors’ wills,” and that nickname is accurate, if a little too simple and incomplete.
For an oral will to be valid and probated in New York, there must be at least two witnesses to the making of the will and the dispositions in the will. Their testimony will be needed to prove that a will was made, under what circumstances and what was actually said.
Not just anyone can make a nuncupative will. Sailors, for example, have the legal ability to create this type of will. For a soldier to have the same power, however, they must be:
- A member of the U.S. armed forces
- In actual military or naval service
- Actively serving during a war (whether declared or undeclared) or other armed conflict
Because the primary purpose of allowing this type of will is to enable soldiers and sailors to dispose of their property if they die before they are able to return to civilian life, wills of this type made by soldiers (and others serving with armed forces) expire one year after the person who made the will has been discharged from the armed forces. Sailors’ wills expire three years after they are made.
Written and witnessed wills are the norm in New York, and an experienced New York estate planning attorney can help ensure that your will is valid and disposes of your property as you desire.