New York Courts Require that the Terms of a Last Will and Testament be Followed

New York Estate Lawyers know that it is important for individuals to create plans that reflect their intentions. An estate plan can include a Last Will, Living Will, Health Care Proxy, Power of Attorney and Living Trust.

It is important that when creating these documents, an individual give serious consideration to the provisions that are made in each instrument. For example, when preparing a Power of Attorney, a person should be careful to designate an agent that is trustworthy and that the agent be given powers that are necessary and restricted as the situation or circumstance may require. It may not always be the best course just to fill out the standard Power of Attorney form with all of the powers provided and sign it without regard to the possible consequences of such act. Similarly, it is very important to give consideration to the provisions to be inserted in a Last Will or Trust. While it may be easy to provide a bequest to one or more persons in certain amounts, it is best to foresee the consequences or problems that such disposition may entail. For example, it may be appropriate to create a Supplemental Needs Trust for a beneficiary instead of providing for an outright gift to such person. If the beneficiary is receiving government benefits, an outright bequest could very well cause the government benefits to be discontinued or the bequest may be taken by the government as repayment for past benefits.

The Surrogate’s Courts typically uphold the language in a Will and do not rewrite or change the Will provisions unless there is an ambiguity or another legally grounded basis to do so. Thus, creating the most appropriate and clear terms in a Will or Trust is essential. Of course, not all issues can be anticipated when a Last Will is prepared. A recent case entitled Matter of Smith, which was decided by Supreme Court Justice John Ellis on October 6, 2015, provides an interesting example of an issue regarding the terms of a Will. In his Will, which was dated February 21, 1928, Phelps Smith bequeathed his estate to establish a college to be known as “Paul Smith’s College of Arts and Sciences”.

Years later a new benefactor desired to donate $20 million to the college provided that the college be re-named with the name of the benefactor. In view of the large potential gift, the college petitioned the Court to allow it to modify the terms of the Will and thereby change its name. The college claimed that it needed the new bequest to help support its continued viability. After an extensive review of the college’s financial and other circumstances the Court refused to allow it to change its name. The Court found that the Will’s restriction on the change of name was neither impractical nor wasteful to the extent that the New York statutes would allow a variation from the Will’s directives.

As can be seen from Smith, it is important to consider the effect and consequences of provisions that are placed in a Will or Trust. While such provisions may seem uncomplicated when first created, unanticipated events may create results that may not have been desired. The essential point is that when preparing a Will or Trust, speak with advisors such as estate lawyers and consider the ramifications and outcomes of the provisions that are made in the instruments. I work closely with my clients in creating their Wills and Trusts and other estate documents. If you have any questions regarding a Will or Trust or an Estate call me now to discuss your issue.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email:, for an initial consultation.

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