Disclaimer: This article provides general information and is not legal advice. Consult a qualified attorney for advice tailored to your situation.
Detailed Answer
1. Requirements for a Valid Will in New York
Under New York’s Estates, Powers & Trusts Law § 3-2.1, a will is valid only if all of the following occur:
- The testator signs the document (or directs another to sign it) in their presence.
- Two witnesses sign within 30 days of each other, each in the presence of the testator.
See EPTL § 3-2.1: https://www.nysenate.gov/legislation/laws/EPT/3-2.1.
2. Admitting an Out-of-State Will
Article 14 of the Surrogate’s Court Procedure Act (SCPA) governs wills executed outside New York. Under SCPA § 1405, a will that is valid where executed is recognized in New York. To admit a will executed in North Carolina, you must demonstrate compliance with North Carolina law. NC requires at least two attesting witnesses. A document signed by the decedent without two witnesses (or a self-proving affidavit) fails those formalities and cannot be admitted here.
See SCPA § 1405: https://www.nysenate.gov/legislation/laws/SCPA/1405.
3. No “Harmless Error” Rule in New York
Unlike some states, New York does not apply a harmless-error or substantial-compliance doctrine to validate defective wills. If a will fails New York formalities under EPTL § 3-2.1 and fails formalities under the law of the place executed, Surrogate’s Court will refuse probate. Your options include:
- Administering the estate as intestate under EPTL Article 4.
- Locating a properly executed codicil or later will.
- If the will was lost, destroyed or never proved, petitioning under SCPA § 1407 to reconstruct it based on clear and convincing evidence of its contents.
See SCPA § 1407: https://www.nysenate.gov/legislation/laws/SCPA/1407.
Helpful Hints
- Gather every draft of the will, correspondence or notes showing the decedent’s intent.
- Speak with anyone who saw the decedent sign or discuss the document.
- If you draft a new will, include a self-proving affidavit to simplify future probate.
- Consult an estate attorney before filing a petition to ensure you follow local Surrogate’s Court rules.
- If the will cannot be admitted, prepare to distribute assets under intestacy statutes (EPTL Article 4).