New York Estate Planning & Elder Law Blog
A last will and testament is an important legal document that tells our loved ones and the government how we wish for our estate to be apportioned to heirs and friends upon passing away. Although New York trust and estates law give testators wide latitude to decide what parts of their estates go to whom, there are still certain restrictions on what types of property can be given away if there is a surviving spouse and circumstances in which a testator may be coerced into created an invalid law.
In cases where some portions of the last will and testament are invalide, the surrogate court probating the will must admit the document if the court is satisfied the will is genuine, the testator was of sound mind or not under any undue restraint, and was executed in accordance with statutory requirements. However, the court will have to throw out parts of the will that are otherwise invalid so long as it can separate without defeating the testator’s intent or destroying the overall testamentary scheme.
Courts can also strike portions of a last will and testament they deem to be invalid due to improper execution, such as additions made to the document after a witness affixed his or her mark on the will. This same action may be applied when courts deem that addendums to a will were made when the testator was incapacitated or otherwise coerced into adding a section to the document. Courts are well within their power to isolate these particular sections of the will and preserve the original intentions of the testator that were properly executed.
These are just some of the many reasons courts require estates to be probated through Surrogates Courts and comply with New York estate laws. Without this system, it would be easier for bad actors to try and take advantage of others through fraud, coercion, or the testator’s inability to fully comprehend what he or she is giving away by making changes to their last will and testament. It is also important to note that if you make changes to your last will and testament that you will need to ensure you follow all the proper steps to ensure the Surrogate’s Court probating your estate will adhere to your final wishes and disperse assets in accordance to what you see fit.