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Attorney Lola Waterman Speaks on… The Will

A Last Will and Testament has roots buried deep in ancient Greece, Rome, the Church and English law. In ancient Greece, the concept of a Last Will and Testament (“will”) was a means of dispossessing of a person’s estate solely to his or her family members.
Over the years, and more specifically, in the United States, we have come to define a Will as a legal document that explains what you want to happen with your property at the time of your death. In most states, there are longstanding legal requirements that the testator (the person’s whose will it is) be over a certain age, have capacity, draft his or her will voluntarily, and be free from coercion, duress and fraud. Unlike ancient times where a testator was restricted to making bequests only to family members, the laws of wills have evolved and now permit a testator to make bequests to friends, charities and pets, in addition to family members.
In New York, the Estates, Powers and Trusts Law (“EPTL”) governs the substantive and procedural aspects of a will. The EPTL directs that a testator be at least eighteen years old; have testamentary capacity; that the will be in writing and designate beneficiaries; and that the will be signed by the testator in the presence of two witnesses, who must also sign the will. Handwritten (holographic) and oral (nuncupative) wills are recognized only in very limited circumstances. As it relates to testamentary capacity, perfect mental capacity is not the criterion.
The gauge of testamentary capacity is whether the testator understands the nature of (1) the document he or she is signing, (2) his or her assets, and (3) his or her bounty (the beneficiaries). Simply stated, the testator should have some understanding of the consequences of signing a will, must know his or her relationship with the beneficiaries, must know which asset is passing under his or her will, and to whom.
One of the hot topics pertaining to wills is whether a relative can be disinherited. Disinheritance is the act of preventing someone (a next of kin or heir) from inheriting part or all of a testator’s estate. In most states, as it is in New York, a parent can disinherit a child, with or without reason. The rationale behind disinheritance could be that the child may squander his or her inheritance, has not lived up to the parent’s expectations, is well-off and “does not need it,” or as the singer-performer, Sting put it, he did not want his wealth to become “albatrosses around their [his children’s] necks.”
Whatever your reason may be for disinheriting a child, weigh that against the importance of generational wealth and creating a legacy for future generations. And if disinheritance is still warranted, you may want to consider setting up generation-skipping trusts for your grandchildren.
The law surrounding the disinheritance of a spouse is not as permissive. In New York, the general rule is that you cannot disinherit a spouse. It does not matter that you have been separated for over thirty years, or that your spouse makes more money than you do, among other reasons. Some have tried to disinherit a spouse by explicitly stating so in a will, only for the “disinherited” spouse to make a claim against the deceased spouse’s estate for what is known as a “spousal right of election.”
Pursuant to Section 5-1.1 of the EPTL, a spouse who has been left out of a deceased spouse’s estate can nevertheless exercise his or her spousal right of election, entitling the surviving spouse to one-third of the value of the deceased spouse’s estate. I am sure inquiring minds want to know how Hugh Hefner was able to entirely disinherit his wife from his $55 million dollar estate. The short answer is that they entered into a prenuptial agreement wherein his wife waived her spousal right of election. Waiver of a spousal right must be in writing. The law in California, where the Playboy founder passed away, is similar to the law in New York law in this regard. But before you start feeling sorry for Mrs. Hefner, she received investment accounts and a house, via their prenuptial agreement, both worth well over $10 million dollars. Not too shabby, right? The great thing about Hefner’s estate planning strategy was that he was able to leave his $55 million dollar estate to his four children from prior marriages, which may not have yielded the same result had he not entered into a prenuptial agreement with his wife.
Another topic that arises often is where an original will should be kept for safekeeping. Keeping your will, and other legal documents, in a bank safe deposit box is not suggested as a third-party would not be able to gain access to the safe deposit box without a court order. On the other hand, if you believe your will may be destroyed by a disgruntled heir unhappy with the contents of your will, it may be a good idea to have your lawyer or another trusted person hold on to it. For a small fee, you may also file your will with the Surrogate Court for safekeeping. Wherever you decide to keep your will, make sure it is accessible and that a trusted person knows of its existence and whereabouts.
A quick note about online wills: A will obtained from any of the several internet-based companies can be legitimate, provided it complies with the necessary legal requirements. Online wills also tend to cost less than hiring an attorney. But buyer beware: one size does not fit all. The online programs do not take into account the nuances and complexities of your personal circumstances, and most do not render legal advice. Sitting down with the right attorney can help you explore those nuances that will enable you to have a tailored estate plan in place. I often use the analogy of buying off the rack versus custom-made clothing. With the latter, your body frame, measurements and comfort level have been taken into account, and as the fashion aficionados will tell you – fit is the most important aspect of style. Even what appears to be a straightforward estate plan may not be so straightforward after you are gone, and partnering with the right estate planning attorney can help prevent undesired outcomes.
As the proverbial saying goes, the two inevitabilities in life are death and taxes. With taxes, unless exempt, we prepare for it each year by filing and paying our share, and the same fervor and accountability should go to planning for the other inevitability. And remember, if you do not take your estate plan into your own hands, the government can and often does.I can be reached at Lola Waterman, Esq.
The information provided in this article does not, and is not intended to, constitute legal advice and is for general informational purposes only. Readers of this article should contact their attorney to obtain advice with respect to any particular legal matter. The views expressed in this article are those of the individual author writing in her individual capacity only.

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