PART 1. WHO MAY MAKE AND RECEIVE TESTAMENTARY DISPOSITIONS OF PROPERTY; WHAT PROPERTY MAY BE DISPOSED OF BY WILL S 3-1.1 Who may make wills of, and exercise testamentary powers of appointment over property Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property. S 3-1.2 What property may be disposed of by will Every estate in property may be devised or bequeathed. S 3-1.3 Who may receive testamentary dispositions of property; testamentary dispositions to unincorporated associations (a) A testamentary disposition of property may be made to any person having capacity to acquire and hold such property. (b) When a will disposes of property to an association which lacks capacity to receive such property by will because it is unincorporated and the association may become incorporated under the law of this state or of the jurisdiction in which it has its principal office, such disposition is valid despite the lack of capacity of the beneficiary if within three years after probate of the will such beneficiary becomes incorporated with capacity to take such disposition, subject to the following: (1) This section does not limit the power of the court to give effect to the intention of the testator and to preserve dispositions for the use and benefit of unincorporated associations. (2) In the case of a testamentary disposition of property to an unincorporated association in such manner that the estate may lawfully vest in such association, as provided in paragraph (b), at a future time, the estate shall be treated as immediately vested either in the trustee in whom any estate preceding such disposition is vested or, if there is no such precedent trust, in the personal representative of the decedent`s estate as trustee, subject to any intermediate estate created by the will. The trust herein created is subject to the direction and control of the surrogate`s court as if it had been created by express provision in the will. If the association is incorporated and empowered to receive the disposition, the trustee shall transfer the property disposed of to the corporation so formed, but if the association is not incorporated, the trustee shall transfer the property to such persons as are entitled thereto. (3) If a testamentary disposition to an association is made in such manner as to take effect upon the incorporation of such association, as provided in paragraph (b), and no disposition is made of the rents, profits or other income accruing prior to such incorporation, the will shall be construed as directing the trustee described in subparagraph (2) to receive the rents, profits or other income and to hold them for the benefit of the corporation when formed or, if such corporation is not formed within the time prescribed by paragraph (b), for the benefit of the persons entitled to the property upon the failure of such disposition. (4) Notwithstanding any other law of this state governing (A) the purposes for which trusts may be created, (B) the rule against perpetuities or (C) the accumulation of income, a trust as provided in subparagraph (2) is valid. (5) During the continuance of any trust authorized by subparagraph (2), the unincorporated association to which the disposition is made may enforce such trust, and any such association has capacity as such, despite the fact that it is not incorporated, to exercise such right and to take such proceedings as may be appropriate for the exercise or waiver of such right or, in the manner permitted by law for renunciation by a testamentary beneficiary, to renounce the disposition. In the event of any such renunciation, the trust provided for in subparagraph (2) shall terminate and the property, including accumulations, shall vest in the persons otherwise entitled thereto as if no such disposition had been made. (6) This section does not limit the effectiveness of 8-1.1 with respect to a disposition to which that section applies.
PART 2. EXECUTION OF WILLS S 3-2.1 Execution and attestation of wills; formal requirements (a) Except for nuncupative and holographic wills authorized by 3-2.2, every will must be in writing, and executed and attested in the following manner: (1) It shall be signed at the end thereof by the testator or, in the name of the testator, by another person in his presence and by his direction, subject to the following: (A) The presence of any matter following the testator`s signature, appearing on the will at the time of its execution, shall not invalidate such matter preceding the signature as appeared on the will at the time of its execution, except that such matter preceding the signature shall not be given effect, in the discretion of the surrogate, if it is so incomplete as not to be readily comprehensible without the aid of matter which follows the signature, or if to give effect to such matter preceding the signature would subvert the testator`s general plan for the disposition and administration of his estate. (B) No effect shall be given to any matter, other than the attestation clause, which follows the signature of the testator, or to any matter preceding such signature which was added subsequently to the execution of the will. (C) Any person who signs the testator`s name to the will, as provided in subparagraph (1), shall sign his own name and affix his residence address to the will but shall not be counted as one of the necessary attesting witnesses to the will. A will lacking the signature of the person signing the testator`s name shall not be given effect; pro- vided, however, the failure of the person signing the testator`s name to affix his address shall not affect the validity of the will. (2) The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses, or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction. The testator may either sign in the presence of, or acknowledge his signature to each attesting witness separately. (3) The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will. (4) There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator`s signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will. There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will. (b) The procedure for the execution and attestation of wills need not be followed in the precise order set forth in paragraph (a) so long as all the requisite formalities are observed during a period of time in which, satisfactorily to the surrogate, the ceremony or ceremonies of execution and attestation continue. S 3-2.2 Nuncupative and holographic wills (a) For the purposes of this section, and as used elsewhere in this chapter: (1) A will is nuncupative when it is unwritten, and the making thereof by the testator and its provisions are clearly established by at least two witnesses. (2) 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. (b) A nuncupative or holographic will is valid only if made by: (1) 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. (2) A person who serves with or accompanies an armed force engaged in actual military or naval service during such war or other armed conflict. (3) A mariner while at sea. (c) A will authorized by this section becomes invalid: (1) If made by a member of the armed forces, upon the expiration of one year following his discharge from the armed forces. (2) If made by a person who serves with or accompanies an armed force engaged in actual military or naval service, upon the expiration of one year from the time he has ceased serving with or accompanying such armed force. (3) If made by a mariner while at sea, upon the expiration of three years from the time such will was made. (d) If any person described in paragraph (c) lacks testamentary capacity at the expiration of the time limited therein for the validity of his will, such will shall continue to be valid until the expiration of one year from the time such person regains testamentary capacity. (e) Nuncupative and holographic wills, as herein authorized, are subject to the provisions of this chapter to the extent that such provisions can be applied to such wills consistently with their character, or to the extent that any such provision expressly provides that it is applicable to such wills.
PART 3. RULES GOVERNING TESTAMENTARY DISPOSITIONS S 3-3.1 What a testamentary disposition includes Unless the will provides otherwise, a disposition by the testator of all his property passes all of the property he was entitled to dispose of at the time of his death. S 3-3.2 Competence of attesting witness who is beneficiary; application to nuncupative will (a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment had been made, subject to the following: (1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder. (2) Subject to subparagraph (1), any such disposition or appointment to an attesting witness is effective unless the will cannot be proved without the testimony of such witness, in which case the disposition or appointment is void. (3) Any attesting witness whose disposition is void hereunder, who would be a distributee if the will were not established, is entitled to receive so much of his intestate share as does not exceed the value of the disposition made to him in the will, such share to be recovered as follows: (A) In case the void disposition becomes part of the residuary disposition, from the residuary disposition only. (B) In case the void disposition passes in intestacy, ratibly from the distributees who succeed to such interest. For this purpose, the void disposition shall be distributed under 4-1.1 as though the attesting witness were not a distributee. (b) The provisions of this section apply to witnesses to a nuncupative will authorized by 3-2.2.
NY EPTL Index
NY SCPA Index
Introduction to Wills
Introduction to Trusts
S 3-3.3 Disposition to issue or brothers or sisters of testator not to lapse; application to class dispositions (a) Unless the will whenever executed provides otherwise: (1) Instruments executed prior to September first, nineteen hundred ninety-two. Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes. (2) Instruments executed on or after September first, nineteen hundred ninety-two. Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation. (3) The provisions of subparagraphs (1) and (2) apply to a disposition made to issue, brothers or sisters as a class as if the disposition were made to the beneficiaries by their individual names, except that no benefit shall be conferred hereunder upon the surviving issue of an ancestor who died before the execution of the will in which the disposition to the class was made. (b) As used in this section, the terms "issue", "surviving issue" and "issue surviving" include adopted children and their issue to the extent they would be included in a disposition to "issue" under 2-1.3 and subdivision two of section one hundred seventeen of the domestic relations law, and nonmarital children; for this purpose, a nonmarital child is the child of his mother and is the child of his father if he is entitled to inherit from his father under 4-1.2. S 3-3.4 Consequences of partly ineffective testamentary dispositions of property to two or more residuary beneficiaries Whenever a testamentary disposition of property to two or more residuary beneficiaries is ineffective in part, as of the date of the testator`s death, and the provisions of 3-3.3 do not apply to such ineffective part of the residuary disposition nor has an alternative disposition thereof been made in the will, such ineffective part shall pass to and vest in the remaining residuary beneficiary or, if there are two or more remaining residuary beneficiaries, in such beneficiaries, ratably, in the proportions that their respective interests in the residuary estate bear to the aggregate of the interests of all remaining beneficiaries in such residuary estate. S 3-3.5 Conditions qualifying dispositions; conditions against contest; limitations thereon (a) A condition qualifying a disposition of property is operative despite the failure of the testator to provide for an alternative gift to take effect upon the breach or non-occurrence of such condition. (b) A condition, designed to prevent a disposition from taking effect in case the will is contested by the beneficiary, is operative despite the presence or absence of probable cause for such contest, subject to the following: (1) Such a condition is not breached by a contest to establish that the will is a forgery or that it was revoked by a later will, provided that such contest is based on probable cause. (2) An infant or incompetent may affirmatively oppose the probate of a will without forfeiting any benefit thereunder. (3) The following conduct, singly or in the aggregate, shall not result in the forfeiture of any benefit under the will: (A) The assertion of an objection to the jurisdiction of the court in which the will was offered for probate. (B) The disclosure to any of the parties or to the court of any information relating to any document offered for probate as a last will, or relevant to the probate proceeding. (C) A refusal or failure to join in a petition for the probate of a document as a last will, or to execute a consent to, or waiver of notice of a probate proceeding. (D) The preliminary examination, under SCPA 1404, of a proponent`s witnesses, the person who prepared the will, the nominated executors and the proponents in a probate proceeding. (E) The institution of, or the joining or acquiescence in a proceeding for the construction of a will or any provision thereof. S 3-3.6 Encumbrances on property of decedent or on proceeds of insurance policy on life of decedent not chargeable against assets of decedent`s estate (a) Where any property, subject, at the time of decedent`s death, to any lien, security interest or other charge, including a lien for unpaid purchase money, is specifically disposed of by will or passes to a distributee, or where the proceeds of any policy of insurance on the life of the decedent are payable to a named beneficiary and such policy is subject to any lien, security interest or other charge, the personal representative is not responsible for the satisfaction of such encumbrance out of the property of the decedent`s estate, except as provided in SCPA 1811, unless, in the case of a will, the testator has expressly or by necessary implication indicated otherwise. A general provision in the will for the payment of debts is not such an indication. (b) Any such encumbrance is chargeable against the property of the decedent or the proceeds of a policy of insurance on the life of the decedent, subject thereto. Nothing in this section imposes upon a testamentary beneficiary, distributee or named insurance beneficiary any personal liability for the payment of the debt secured by such encumbrance. (c) Where any lien, security interest or other charge encumbers: (1) Property passing to two or more persons, the interest of each such person shall, only as between such persons, bear its proportionate share of the total encumbrance. (2) Two or more properties, each such property shall, only as between the recipients thereof, bear its proportionate share of the total encumbrance. S 3-3.7 Testamentary disposition to trustee under, or in accordance with terms of existing inter vivos trust (a) A testator or testatrix may by will dispose of or appoint all or any part of his or her estate to a trustee of a trust, the terms of which are evidenced by a written instrument executed by the testator or testatrix, the testator or testatrix and some other person, or some other person, including a trust established for the receipt of the proceeds of an annuity or pure endowment contract, or of a thrift, savings, pension, retirement, death benefit, stock bonus, or profit-sharing plan or system or a funded or unfunded life, group life, industrial life or accident and health insurance trust although the settlor has reserved any or all rights of ownership of the insurance contracts, regardless of the existence, size or character of the corpus of such insurance trust or other trust; provided that such trust instrument is executed in the manner provided for in 7-1.17, prior to or contemporaneously with the execution of the will, and such trust instrument is identified in such will. (b) The testamentary disposition or appointment is valid, even though: (1) The trust instrument is amendable or revocable, or both, provided, however, that the disposition or appointment shall be given effect in accordance with the terms of the trust instrument, including an amendment thereto, as they appear in writing on the date of the testator`s death and, where the testator so directs, including amendments to the trust instrument after his death, if the instrument evidencing such amendment is executed and acknowledged in the manner herein provided for executing and acknowledging the instrument which it amends. (2) The right is reserved in such trust instrument (A) to exercise any power over any property transferred to or held in the trust or (B) to direct during the lifetime of the settlor or any other person, the persons and organizations to whom or in whose behalf the income shall be paid or the principal distributed. (3) The trust instrument or any amendment thereto was not executed and attested in accordance with the formalities prescribed by 3-2.1. (c) The property so disposed of or appointed by will becomes a part of the trust to which it is given, and title thereto vests in the trustee to be administered and disposed of in accordance with the terms of the trust instrument. (d) Any disposition or appointment to the trustee made by a testator who died prior to the effective date of this section, which would be invalid under the applicable law of this state pre-existing the effective date of this section, shall be construed to create a testamentary trust under and in accordance with the terms of the trust instrument which the testator originally intended should embrace the property disposed of or appointed, as such terms appear in such trust instrument at the date of the testator`s death. (e) A revocation or termination of the trust before the death of the testator shall cause the disposition or appointment to fail, unless the testator has made an alternative disposition. S 3-3.8 Validity of a purchase of real property notwithstanding its disposition by will The title of a purchaser of real property, in good faith and for valuable consideration, from a distributee of a person who died owning such property shall not be affected by a testamentary disposition of such property by the decedent, unless within two years after the testator`s death the will disposing of the property is admitted to probate. If, however, at the time of the testator`s death, the devisee is either an infant, incompetent, imprisoned for a term less than life, without the state or if the will was concealed by one or more of the distributees of the decedent, the two year period prescribed herein does not commence until the expiration of one year from the time of the removal of such disability or the delivery of the will to the devisee or to the surrogate having jurisdiction to admit the will to probate. S 3-3.9 Testamentary direction to purchase annuities If a testator directs in his will the purchase of an annuity, the beneficiaries to whom the income thereof is to be paid may not elect to take the capital sum directed to be used for the purchase of such annuity in lieu thereof, unless the will expressly confers such right or except as the will expressly provides for the purchase of an assignable annuity. But nothing contained herein shall impair the right of election by a surviving spouse under 5-1.1 or 5-1.1-A.