Under New York law, a will is a written document that takes effect after your death. In it, you write:

  • How your property and assets (also called your “estate”) should or should not be given out;
  • Who will give out your property after your death (your “executor”);
  • How any remaining bills/taxes should be paid;
  • Who should care for your minor children; or
  • What should happen to your body or specific parts of your body

What Are The Requirements For Making A Will

Under New York law, any person who is over 18 and who is “of sound mind and memory” can make a will. This is called “legal capacity.” Having legal capacity to make a will means that at the time you make the will:

  • You understand what you are doing by making and signing a will and deciding how to divide up your property;
  • You are aware of the kind of property and value of the property you are including in your will; and
  • You know and understand your relationship to the people you are giving your money or property to.

You do not have to be 100% mentally sound to make a valid will. Even if you have dementia, for example, you may be able to make a will if there are periods of time where you are mentally aware; but, you must be aware of what you are doing at the time that you make the will, not at some time later on.

Compare the following examples of when you would have sound mind and memory to make a will, and when you may not. In example 1 and 2, you probably have sound mind and memory; in examples 3 and 4, you might have sound mind and memory; and, in the last two, you probably do not. Each case will depend on all the facts involved.

  1. You are forgetful, and sometimes do not recall what year it is or remember recent conversations. You are able to handle your own money matters without any trouble.
  2. You are unable to care for your own physical needs, but speak fondly about your family and friends and what you want to leave each person when you die.
  3. You are an alcoholic who suffers from delusions and blackouts. You were drinking heavily the day before signing the will.
  4. You have said twice while making your will that you want to leave your house to your aunt who, you found out a long time ago, died. You make no other mistakes and, after being reminded that your aunt is dead, remember when and how she died.
  5. You want to leave money to someone who you have known for a long time to be dead and cannot be talked out of it, even though you are otherwise able to make the will without any problems.
  6. An attorney or witness to the signing of your will notices that, during the signing ceremony, you are confused and have forgotten what you put in the will.

Your will must also meet some other requirements in order for it to be valid. The will must be in writing and signed by you, the “testator,” at the end of the will. You must sign your will in the presence of at least two witnesses, who do not receive anything under your will. At the time you are signing your will you are to state to the witnesses that you are signing your will. The witnesses are to confirm your signature and, at your request, sign their names and write their addresses at the end of the will. While it is very unusual, you may ask another person to sign your name to your will. The person is to sign your name in your presence, sign the person’s name and write his or her address. The person will not be counted as a witness to your will.

Legal Editor: Neil B. Hirschfeld, March 2015

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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