Constituents of a Will and the Status of a Foreign Will in New York
What is a will?
While we tend to think of a will as a testamentary instrument for the disposition of testator’s property upon their death, this is not the legal requisite for a foreign will in New York to be valid. In actuality, a will is an instrument which takes effect upon one’s death, can be revoked by the testator up to that point and does any of the following:
Property disposition
Contingent on the instrument having been executed with the proper formalities, a revocable document that disposes of one’s property after the death of the will writer comprises a will.
Accounts for disposition of property
Let’s say a will provides for the disposition of various gifts, but states the following, “I intentionally disinherit my son, and I desire that he not share in any portion of my estate.” Yet, should the will not make a complete disposition of the testator’s estate, the result will be a partial intestacy.
Terms defined
Here, there is a need to define certain terms. A testator is a person who makes or who has left a will when they. Dying “intestate” means that the decedent either left no will; was denied probate, which is the judiciary procedure for establishing that a will or testamentary document is valid; or the decedent did leave a will but it fails to make a complete disposition of their estate, which would result in a partial intestacy. A will may be denied probate if it were not properly executed or was successfully contested by the decedent’s heirs.
Directs how property should not be disposed
Based on the language used in the disposition above, both common law and the majority of U.S. states would deem that the disinheriting language used in the will is ineffective. As a result, said son would take a share of the portion of the testator’s property that was no specifically disposed of in the will, through intestate succession. Intestate succession has its own rules which exceed the scope of this article. The salient point is that the decedent would be considered to have died without a will, to have left a will but one which makes only a partial disposition of their property or to have had their will declared invalid in probate. The result would be that all property passing through intestacy would be governed not by the testator’s will but the statute.
New York’s take on the above
New York has what is known as a negative-bequest statute. In contrast to common law and most of the states, this statute recognizes the validity of a provision of a will directing how property should not be disposed. As a consequence, it would be as if the son pre-deceased the testator and the property passing by partial-intestacy would be distributed accordingly.
Disposition of a testator’s body in whole or part
The statutes recognize the admission to probate of an instrument which merely accounts for the disposition of one’s body or even body part, such as a stated desire to donate one of the testator’s kidneys. There is an exception to the donation of one’s organs in that the statute allows for recognition, pursuant to fulfillment of certain conditions, even of an oral will. Ordinarily, a will must be a written document.
Exercises power of appointment
An instrument that limits itself to executing a power of appointment upon one’s demise may account for a validated will, pursuant to the execution of certain formalities.
Appoints a fiduciary or provides for administration
A duly executed instrument that appoints a fiduciary or makes any other provision for administration of the estate is a valid will.
What is the status of a foreign will?
Owing to the great variance between US states regarding the statutory rules governing the requirements for a duly executed will, the Uniform Execution of Wills Act has been enacted to avoid the conflict of laws faced by mobility of the nation’s inhabitants. This act states that a will which was executed in a different state in the US may be valid even if not enacted in accordance with New York doctrine. The New York Consolidated Laws, Powers, Estates and Trusts Law states that a will can be valid and admissible to probate in New York if it is in writing and meets certain criteria.
Even if the will is not executed in accordance with New York law, but it adheres to the law of the jurisdiction in which it is executed, then it will also be valid in New York – regardless of where the testator happens to be living at the time when they executed the will. So too, if the will adheres to the law governing the place the testator happens to be living at the time they execute the will or die then it will also be valid in New York. An expert’s foreign legal opinion may be required to determine the will’s validity according to the foreign law.
How is the will interpreted
It should be noted that the above mentioned solely applies to the question of validity of the will’s execution and not to the applicability of the interpretive law. Upon the foreign will having been admitted to probate, New York law will govern the interpretation of it and of the interests it creates. The above mentioned has direct bearing on the validity and interpretation of a foreign will, such as that of Israel, under New York law.
In other words, even if a foreign will is deemed valid under NY law, interpretation of any contentious instructions of the will shall be under NY law as well, not the law of the US state or foreign country wherein the will was drafted.
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