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Be Careful When Attempting to Modify or Alter a New York Last Will and Testament

shutterstock_1123004039-300x199Estate planning in New York involves many different aspects.  Initially, a person needs to consider and develop the manner in which an estate is to be distributed.  Decisions need to be made concerning the various beneficiaries who are to receive distributions.  Also, the amount of payment to each beneficiary under a Last Will and Testament must be decided upon.  Another aspect for review involves whether or not a Will should contain a testamentary trust in which the beneficiaries’ share would be held rather than paid out immediately in one lump sum.  A trust can be established for a spouse, child or a third party beneficiary.  Sometimes a Supplemental Needs Trust is established to preserve governmental benefits for a beneficiary with a disability.

An estate plan should be made with attention to estate settlement.  Executors need to be named.  Contingency provisions should be included such as alternate beneficiary provisions in the event of a change of circumstances such as the death of a beneficiary preceding the decedent.

There are situations when the actual provisions of a Will need to be changed either due to circumstances or preferences by the testator.  In these cases, it is essential to remember that all Wills and alterations that are made on Wills must satisfy the requirements of Estates, Powers and Trusts Law Section 3-2.1 entitled “Execution and attestation of wills; formal requirements.”  This provision sets forth requirements regarding the signing of a Will and the need for two attesting witnesses.  Sometimes a person may prepare and execute a Codicil to a Will.  A Codicil is an amendment to a Will which needs to satisfy the EPTL 3-2.1 execution requirements.  Since the Codicil and the original Will need to be read together, there is the possibility that the language in the two documents may be confusing or ambiguous.  In my view, the better course to follow is to prepare a new original Last Will in the place of the old one, incorporating the new provisions.  This way there is less of a chance of confusion and there is no need to locate two documents at the time of probate.

Another issue which arises from time to time is alterations that are made to a Will.  A person may want to change some aspect of the Will provisions, and instead of creating a new document, makes handwritten changes on the face of the existing Will.  Such modifications are not effective unless made in compliance with EPTL 3-2.1.  This requirement is specifically stated in EPTL 3-4.1 entitled “Revocation of wills; effect on codicils.”  These types of matters typically result in estate litigation in the Surrogate’s Court.

A recent Bronx estate case decided by Bronx Surrogate Nelida Malave-Gonzalez on August 25, 2022 entitled Matter of DiPaolo, involved handwritten changes on a Will.  In DiPaolo, the decedent had made handwritten changes on her Will which inserted her daughter’s name in a provision and a handwritten change of the word “husband” to “daughter.”  The Surrogate found that the changes were made before the Will was executed and in the presence of the witnesses.  Since the Will with the changes was duly executed after the changes were made, the Court found that it satisfied EPTL 3-2.1 and admitted the Will to probate.

I have represented individuals in probate and other estate matters throughout New York for over 40 years.  Many cases involve complicated issues regarding estate law and Surrogate’s Court procedure.  If you are facing questions or problems regarding an estate, Call Me Now for a free confidential review of your estate matter.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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