The New York Estates, Powers and Trusts Law (“EPTL”) along with the Surrogate’s Court Procedure Act (“SCPA”) contain the statutory rules and procedures regarding decedent’s estates. EPTL Section 3-2.1 entitled “Execution and Attestation of Wills; formal requirements” has been discussed in previous blog posts. This section sets forth the rules that control the valid signing of a Last Will. The section provides, for example, that the Will must be signed at the end of the document by the testator. It also states that anything that is placed on the document following the signature as well as any matter that is added to the Will preceding the signature but after the Will is signed, shall be invalid.
New York estate lawyers are familiar with the proper preparation and execution of Wills in order to comply with statutory rules. However, there are occasions when documents appear to lack compliance with the statute and require review by the Surrogate’s Court. In Estate of Thomas a Will was filed for probate that contained numerous handwritten alterations to bequests set forth in the paper. In a decision dated January 7, 2014 and reported in the New York Law Journal, Bronx Surrogate Nelida Malave-Gonzalez reviewed the document and the evidence presented to the Court. The evidence included an affidavit from the attorney who prepared the Will which stated that when the Will was signed it did not contain the handwritten changes that were later found on the document. Based upon his proof and other information, the Surrogate found that the handwritten changes did not comply with the requirements of EPTL 3-2.1 and thus were not valid. The Will was admitted to probate and the alterations were ignored and did not change the original provisions of the Will.
In the event an individual wants to change or amend their Will there are two ways to proceed. A Codicil can be prepared which only revises the provisions that are sought to be amended. Instead of a Codicil, the entire Will can be redone in which the only change is the desired modification. Both the Codicil and the new Will need to be executed in accordance with the statutory requirements. The preferred method is to revise and sign a new Will. This tends to eliminate both any confusion and the need to keep track of a number of separately signed papers.
It is always important to have a Will and other documents such as a Health Care Proxy, Power of Attorney and Living Will properly executed. Additionally, in the event a creator wants to amend or change any of the provisions in these papers, it is equally important to do so in a manner that is proper so that the changes can become effective. All testamentary and advance directive papers should be prepared and signed correctly to avoid estate litigation such as Will Contests and to allow easy estate settlement.