Are Handwritten or Oral Wills Enforceable in New York?

September 15, 2023

Having a last will and testament is important to ensuring that your loved ones are cared for in a way that is consistent with your final wishes. A last will can only meet these goals, however, if it is found to be valid and enforceable. A will must meet several requirements in order to be valid and enforceable. There are also limited circumstances in which a handwritten or oral will may be valid even though it does not meet the typical requirements. This article will discuss those situations in which such wills may be acceptable, as well as what you should expect if you are attempting to admit such a will to probate. If you are in need of assistance, contact our office to speak with a lawyer.

New York’s Requirements For a Valid Will

Wills Must Generally be in Writing and Witnessed

New York EPTL 3-2.1 requires that a will be in writing unless it meets the requirements of New York EPTL 3-2.2 (discussed below). The document must also be signed by the person making the will (the testator) and must also be signed by two witnesses. These witnesses need not sign the document at the same time as the testator. They may sign the document within thirty days of the time that the testator signed it. If the witnesses do sign the document at a later date, then the testator must affirm to them that it is, in fact, his or her signature on the document. Verbiage added below the signature of the testator, or after the will was made, will not be considered part of the document when the time comes to admit it to probate.

Handwritten or Oral Wills are Valid Under Limited Circumstances

An exception to New York EPTL 3-2.1 can be found in section 3-2.2. The latter of these two sections allows for a “nuncupative will,” which means it is unwritten, and for “holographic wills,” which are written entirely in the testator’s hand and not signed by the required witnesses. The Court may only find such wills valid if they were made under any of the following circumstances:

  • If the individual making the will is a member of the armed services and they were in an area of conflict at the time the will was made.
  • If the individual worked in a capacity that required them to accompany a member of the armed services into an area of conflict.
  • If the individual making the will was a mariner at sea.

Handwritten and oral wills may be valid under these limited circumstances due to the fact that, for obvious reasons, individuals may be in a position where they must execute a will but do not have time to do so.

Handwritten or oral wills do not remain enforceable for an indefinite period of time after they are made. If they are made by a member of the armed forces, they will become invalid one year after the testator is discharged. If the testator was someone who was accompanying a military member, then they would become invalid one year after the individual ceased accompanying the servicemen. Finally, any such will made by a mariner will automatically expire after three years.

Handwritten or Oral Wills Will Likely Be Contested During Probate

The heirs of a deceased individual may challenge the validity of a will that is being admitted for probate. In the case of oral wills, such challenges are likely in cases that involve a claim that the testator did not actually utter the words. In challenges to a holographic will, claims may include accusations that the will was not actually written by the testator. Depending on the facts of the case, Courts may be hesitant to admit such wills to probate. Judges may also be quick to invalidate them absent strong evidence.

If such a will is challenged, it will likely lead to a substantial delay in the probate process. This is due to the fact that all challenges regarding a will must be resolved before the situation can move forward. As a result, your heirs may have to wait a substantial time before assets may be distributed to them.

An Individual Will be Considered to Have Died “Intestate” If Their Will is Invalidated

If an oral or holographic will is invalidated, the testator will be considered as having died “intestate.” Under this scenario, the individual’s assets will be divided in an order that has been predetermined by the state of New York. Whether this predetermined order is consistent with the testator’s last wishes is irrelevant. As an example, if an individual dies intestate, then their assets will be divided as follows:

  • If the individual had a spouse but no children, then their spouse will inherit everything.
  • If there are children but no spouse, then the children will equally divide all assets.
  • If there is a spouse and children, the spouse will inherit the first $50,000 plus one-half of the remaining estate. The remainder of the estate will be equally divided amongst the children.
  • Etc.

The best way to protect against dying with an intestate estate, if you are a service member or a mariner, is to make sure that your affairs are in order before you deploy or go to sea. Making a will prior to leaving home prevents you from being in a situation where a holographic or oral will is necessary. Contacting a lawyer is the first step in making a will.

Contact Our Long Island Estate Planning Attorney Today

If you or a family member are in need of assistance, contact us today to speak with a Long Island will attorney. We understand the importance of making sure your affairs are in order, and we will determine the best solution for your particular situation. Contact us online or by telephone at 631-234-3030. We strive to provide quality service and look forward to speaking with you.