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NEW YORK LEGAL INFORMATION
Last Will and Testament Statutes
Link to the New York Consolidated Laws online which contain the portion of the Probate Code dealing with last wills, See Chapter 17-B, Article 3.
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected Statutes
New York Consolidated Laws, Chapter 17-B, Article 3
- Sec. 3-1.1 Who may make wills of, and exercise testamentary powers of appointment over property. Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property.
- Sec. 3-1.2 What property may be disposed of by will. Every estate in property may be devised or bequeathed.
- Sec. 3-1.3 Who may receive testamentary dispositions of property; testamentary dispositions to unincorporated associations.
(a) A testamentary disposition of property may be made to any person having capacity to acquire and hold such property.
(b) When a will disposes of property to an association which lacks capacity to receive such property by will because it is unincorporated and the association may become incorporated under the law of this state or of the jurisdiction in which it has its principal office, such disposition is valid despite the lack of capacity of the beneficiary if within three years after probate of the will such beneficiary becomes incorporated with capacity to take such disposition, subject to the following:
- This section does not limit the power of the court to
give effect to the intention of the testator and to preserve
dispositions for the use and benefit of unincorporated
associations.
- In the case of a testamentary disposition of property to
an unincorporated association in such manner that the estate may
lawfully vest in such association, as provided in paragraph (b),
at a future time, the estate shall be treated as immediately
vested either in the trustee in whom any estate preceding such
disposition is vested or, if there is no such precedent trust, in
the personal representative of the decedent`s estate as trustee,
subject to any intermediate estate created by the will. The
trust herein created is subject to the direction and control of
the surrogate`s court as if it had been created by express
provision in the will. If the association is incorporated and
empowered to receive the disposition, the trustee shall transfer
the property disposed of to the corporation so formed, but if the
association is not incorporated, the trustee shall transfer the
property to such persons as are entitled thereto.
- If a testamentary disposition to an association is made
in such manner as to take effect upon the incorporation of such
association, as provided in paragraph (b), and no disposition is
made of the rents, profits or other income accruing prior to such
incorporation, the will shall be construed as directing the
trustee described in subparagraph (2) to receive the rents,
profits or other income and to hold them for the benefit of the
corporation when formed or, if such corporation is not formed
within the time prescribed by paragraph (b), for the benefit of
the persons entitled to the property upon the failure of such
disposition.
- Notwithstanding any other law of this state governing
(A) the purposes for which trusts may be created, (B) the rule
against perpetuities or (C) the accumulation of income, a trust
as provided in subparagraph (2) is valid.
- During the continuance of any trust authorized by
subparagraph (2), the unincorporated association to which the
disposition is made may enforce such trust, and any such
association has capacity as such, despite the fact that it is not
incorporated, to exercise such right and to take such proceedings
as may be appropriate for the exercise or waiver of such right
or, in the manner permitted by law for renunciation by a
testamentary beneficiary, to renounce the disposition. In the
event of any such renunciation, the trust provided for in
subparagraph (2) shall terminate and the property, including
accumulations, shall vest in the persons otherwise entitled
thereto as if no such disposition had been made.
- This section does not limit the effectiveness of 8-1.1
with respect to a disposition to which that section applies.
- Sec. 3-2.1 Execution and attestation of wills; formal requirements.
(a) Except for nuncupative and holographic wills authorized
by 3-2.2, every will must be in writing, and executed and
attested in the following manner:
- It shall be signed at the end thereof by the testator
or, in the name of the testator, by another person in his
presence and by his direction, subject to the following:
- The presence of any matter following the testator`s
signature, appearing on the will at the time of its execution,
shall not invalidate such matter preceding the signature as
appeared on the will at the time of its execution, except that
such matter preceding the signature shall not be given effect, in
the discretion of the surrogate, if it is so incomplete as not to
be readily comprehensible without the aid of matter which follows
the signature, or if to give effect to such matter preceding the
signature would subvert the testator`s general plan for the
disposition and administration of his estate.
- No effect shall be given to any matter, other than the
attestation clause, which follows the signature of the testator,
or to any matter preceding such signature which was added
subsequently to the execution of the will.
- Any person who signs the testator`s name to the will, as
provided in subparagraph (1), shall sign his own name and affix
his residence address to the will but shall not be counted as one
of the necessary attesting witnesses to the will. A will lacking
the signature of the person signing the testator`s name shall not
be given effect; provided, however, the failure of the person
signing the testator`s name to affix his address shall not affect
the validity of the will.
- The signature of the testator shall be affixed to the
will in the presence of each of the attesting witnesses, or shall
be acknowledged by the testator to each of them to have been
affixed by him or by his direction. The testator may either sign
in the presence of, or acknowledge his signature to each
attesting witness separately.
- The testator shall, at some time during the ceremony or
ceremonies of execution and attestation, declare to each of the
attesting witnesses that the instrument to which his signature
has been affixed is his will.
- There shall be at least two attesting witnesses, who
shall, within one thirty day period, both attest the testator`s
signature, as affixed or acknowledged in their presence, and at
the request of the testator, sign their names and affix their
residence addresses at the end of the will. There shall be a
rebuttable presumption that the thirty day requirement of the
preceding sentence has been fulfilled. The failure of a witness
to affix his address shall not affect the validity of the will.
(b) The procedure for the execution and attestation of
wills need not be followed in the precise order set forth in
paragraph (a) so long as all the requisite formalities are
observed during a period of time in which, satisfactorily to the
surrogate, the ceremony or ceremonies of execution and
attestation continue.
- Sec. 3-2.2 Nuncupative and holographic wills.
(a) For the purposes of this section, and as used elsewhere
in this chapter:
- A will is nuncupative when it is unwritten, and the
making thereof by the testator and its provisions are clearly
established by at least two witnesses.
- A will is holographic when it is written entirely in the
handwriting of the testator, and is not executed and attested in
accordance with the formalities prescribed by 3-2.1.
(b) A nuncupative or holographic will is valid only if made
by:
- A member of the armed forces of the United States while
in actual military or naval service during a war, declared or
undeclared, or other armed conflict in which members of the armed
forces are engaged.
- A person who serves with or accompanies an armed force
engaged in actual military or naval service during such war or
other armed conflict.
- A mariner while at sea.
(c) A will authorized by this section becomes invalid:
- If made by a member of the armed forces, upon the
expiration of one year following his discharge from the armed
forces.
- If made by a person who serves with or accompanies an
armed force engaged in actual military or naval service, upon the
expiration of one year from the time he has ceased serving with
or accompanying such armed force.
- If made by a mariner while at sea, upon the expiration
of three years from the time such will was made.
(d) If any person described in paragraph (c) lacks
testamentary capacity at the expiration of the time limited
therein for the validity of his will, such will shall continue to
be valid until the expiration of one year from the time such
person regains testamentary capacity.
(e) Nuncupative and holographic wills, as herein authorized,
are subject to the provisions of this chapter to the extent that
such provisions can be applied to such wills consistently with
their character, or to the extent that any such provision
expressly provides that it is applicable to such wills.
- Sec. 3-3.2 Competence of attesting witness who is beneficiary; application to nuncupative will.
(a) An attesting witness to a will to whom a beneficial
disposition or appointment of property is made is a competent
witness and compellable to testify respecting the execution of
such will as if no such disposition or appointment had been made,
subject to the following:
- Any such disposition or appointment made to an attesting
witness is void unless there are, at the time of execution and
attestation, at least two other attesting witnesses to the will
who receive no beneficial disposition or appointment thereunder.
- Subject to subparagraph (1), any such disposition or
appointment to an attesting witness is effective unless the will
cannot be proved without the testimony of such witness, in which
case the disposition or appointment is void.
- Any attesting witness whose disposition is void
hereunder, who would be a distributee if the will were not
established, is entitled to receive so much of his intestate
share as does not exceed the value of the disposition made to him
in the will, such share to be recovered as follows:
- In case the void disposition becomes part of the
residuary disposition, from the residuary disposition only.
- In case the void disposition passes in intestacy,
ratibly from the distributees who succeed to such interest. For
this purpose, the void disposition shall be distributed under
4-1.1 as though the attesting witness were not a distributee.
(b) The provisions of this section apply to witnesses to a
nuncupative will authorized by 3-2.2.
- Sec. 3-3.7 Testamentary disposition to trustee under, or in accordance with terms of existing inter vivos trust.
(a) A testator or testatrix may by will dispose of or appoint all or
any part of his or her estate to a trustee of a trust, the terms of
which are evidenced by a written instrument executed by the testator or
testatrix, the testator or testatrix and some other person, or some
other person, including a trust established for the receipt of the
proceeds of an annuity or pure endowment contract, or of a thrift,
savings, pension, retirement, death benefit, stock bonus, or profit-
sharing plan or system or a funded or unfunded life, group life, indus-
trial life or accident and health insurance trust although the settlor
has reserved any or all rights of ownership of the insurance contracts,
regardless of the existence, size or character of the corpus of such
insurance trust or other trust; provided that such trust instrument is
executed in the manner provided for in 7-1.17, prior to or contemporane-
ously with the execution of the will, and such trust instrument is iden-
tified in such will.
(b) The testamentary disposition or appointment is valid, even though:
- The trust instrument is amendable or revocable, or both, provided,
however, that the disposition or appointment shall be given effect in
accordance with the terms of the trust instrument, including an amend-
ment thereto, as they appear in writing on the date of the testator`s
death and, where the testator so directs, including amendments to the
trust instrument after his death, if the instrument evidencing such
amendment is executed and acknowledged in the manner herein provided for
executing and acknowledging the instrument which it amends.
- The right is reserved in such trust instrument (A) to exercise any
power over any property transferred to or held in the trust or (B) to
direct during the lifetime of the settlor or any other person, the
persons and organizations to whom or in whose behalf the income shall be
paid or the principal distributed.
- The trust instrument or any amendment thereto was not executed and
attested in accordance with the formalities prescribed by 3-2.1.
(c) The property so disposed of or appointed by will becomes a part of
the trust to which it is given, and title thereto vests in the trustee
to be administered and disposed of in accordance with the terms of the
trust instrument.
(d) Any disposition or appointment to the trustee made by a testator
who died prior to the effective date of this section, which would be
invalid under the applicable law of this state pre-existing the effec-
tive date of this section, shall be construed to create a testamentary
trust under and in accordance with the terms of the trust instrument
which the testator originally intended should embrace the property
disposed of or appointed, as such terms appear in such trust instrument
at the date of the testator`s death.
(e) A revocation or termination of the trust before the death of the
testator shall cause the disposition or appointment to fail, unless the
testator has made an alternative disposition.
- Sec. 3-4.1 Revocation of wills; effect on codicils.
(a) Except as otherwise provided in this chapter, a
revocation or alteration, if intended by the testator, may be
effected in the following manner only:
- A will or any part thereof may be revoked or altered by:
- Another will.
- A writing of the testator clearly indicating an
intention to effect such revocation or alteration, executed with
the formalities prescribed by this article for the execution and
attestation of a will.
- A will may be revoked by:
(A) An act of burning, tearing, cutting, cancellation,
obliteration, or other mutilation or destruction performed by:
- The testator.
- Another person, in the presence and by the direction of
the testator; in which case, the fact that the will was so
revoked in the presence and by the direction of the testator
shall be proved by at least two witnesses, neither of whom shall
be the person who performed the act of revocation.
(b) In addition to the methods set forth in paragraph (a), a
will may be revoked or altered by a nuncupative or holographic
declaration of revocation or alteration made in the circumstances
prescribed by 3-2.2 by any person therein authorized to make a
nuncupative or holographic will. Any such nuncupative
declaration of revocation or alteration must be clearly
established by at least two witnesses; any such holographic
declaration, by an instrument written entirely in the handwriting
of the testator, although not executed and attested in accordance
with the formalities prescribed by this article for the execution
and attestation of a will.
(c) The revocation of a will, as provided in this section,
revokes all codicils thereto.
Library of Informational Legal Articles
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