Yes, handwritten wills (also known as holographic wills) are valid and legal in New York, but only under very limited circumstances.
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.” EPTL 3-2.2.
When Is A Handwritten Will Valid Under New York Law?
A handwritten or holographic will is valid in New York only if it is 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.
The maker of a holographic will is required to have testamentary capacity just as with formal wills under New York state law.
Handwritten Wills Expire Under New York Law
The ability to make a valid handwritten or holographic will is given to those who are in service to their country during conflict. The purpose is to enable service members to dispose of their property if they die during their service. However, it is crucial to know that a handwritten will becomes invalid pursuant to EPTL 3-2.2(c) after the occurrence of certain events.
If the holographic will is made by a member of the armed forces, the will becomes invalid upon the expiration of one year following his or her discharge from the armed forces.
If the holographic will is made by a person who serves with or accompanies an armed force engaged in actual military or naval service, the will becomes invalid upon the expiration of one year from the time he or she has ceased serving with or accompanying such armed force.
Finally, if the handwritten will is made by a mariner while at sea, the will becomes invalid under New York law upon the expiration of three years from the time the handwritten will was made.
What Are Nuncupative Wills In New York?
A nuncupative will in New York is a will that is unwritten (oral) will. The making of a nuncupative will by a testator and its provisions must be clearly established by at least two witnesses.
Nuncupative wills may be made by the same persons and under the same circumstances as holographic wills under New York law.
Is A Handwritten Foreign Will Valid In New York?
A handwritten foreign will from another state can be considered valid under New York law if the will was executed in compliance with the laws of the state or country where it was executed. EPTL 3-5.1(c).
Therefore, if a handwritten will from California (where there is no armed services requirement for a valid holographic will) was executed validly under the laws of California, then the will could be admitted to probate in New York.
The Surrogate’s Court of New York, Westchester County, in In re Cartoon’s Will, summarized the proper inquiries concerning New York holographic wills nicely, stating:
No proof has been produced to show that the latter instrument is holographic, nor is there any evidence that it was executed in a state or foreign country, the laws of which may recognize holographic wills. Petitioner alleges, and it is undisputed, that at the time of the execution of said paper writing dated October 5, 1942, the decedent was not a soldier, or sailor in actual military or naval service or a mariner at sea and therefore the propounded instrument does not come within the application of Section 16 of the Decedent Estate Law. It appearing therefore that the formalities of our governing statute have not been complied with, probate of the said instrument dated October 5, 1942, must be denied.
Therefore, while holographic wills can be valid in New York, they are only available to armed service members while in service, and eventually expire after return to civilian life. The maker of a holographic will should make sure to execute a subsequent will upon return from active service.
