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Holographic will not admitted to probate.  In re Koutsakos (N.Y. Surr. Ct. 2022)


In In re Koutsakos the petitioner asked the Surrogate’s Court of Queen’s County to admit a handwritten will to probate.  The will was dated March 18, 2020.

Requirements for executing a will in New York
For a will to be valid in New York, it must be written and executed in the manner required by New York. The rationale for strict requirements is to prevent fraud.

For a will to be valid, the following requirements must be followed:

  • The will must be in writing
  • The will must be signed by the testator or at the direction of the testator in their presence
  • There must be at least two witnesses who must also sign the will in the presence of the testator

EPTL § 3-2.1

Exceptions to the general requirements
There are 3 exceptions to the general requirements related to how a will must be executed:  holographic will, nuncupative will, and COVID-related rules.

Holographic will.   A holographic will is one that is handwritten and signed by the testator, but not witnessed. A holographic will is only valid under very unique circumstances where it is written by a member of the United States armed forces during a time of conflict. In addition, it is only valid for a limited period of time.  becomes invalid 1 year after the testator ceases serving with the armed forces.  EPTL § 3-2.2

Nuncupative will.  A nuncupative will is an oral will.  It is not in writing, but it must be witnessed by at least two people.  It is valid under the same circumstances that a holographic will is valid. EPTL § 3-2.2

COVID-related Executive Order.  Because of the concern about the spread of COVID and the necessity of social distancing, the governor of New York issue a number of COVID-related executive orders, including one related to executing wills.  Under New York Executive Order 202.14, virtual execution ceremonies were permitted. This allowed the testator and witnesses to be physically in different places during the execution of the will.  However, both the testator and the witnesses were still required to sign the will. Executive Order 202.14 was effective from April 7, 2020 to June 25, 2021.


Koutsako will

In Koutsako, the will submitted to the court for probate was a holographic will.  It was written by hand by the testator.  At the time that she created the will, the testator was in the hospital.  She was not serving in the armed forces. In fact, there was no evidence submitted that the testator had any contact with or relationship to the armed forces. Because the testator was not a member of a class of persons entitled to make a holographic will, the court declined to probate the testator’s will.

The petitioner argued that even though under normal circumstances a holographic will would not be valid, because of the unique circumstances related to COVID, and exception should be made. The petitioner also pointed out that the testator could not avail herself o Executive Order 202.14 as it had not yet been issued.  However, the court rejected both arguments.

While sympathetic to the testator’s circumstances, the court noted that it did not have the authority to essentially change the law related to holographic wills.  The court only had the power to construe the law that the legislature enacted.

The court also expressed that it was troubled by the efforts of the testator’s niece, the sole beneficiary, to find an attorney and execute the will.  The will as handwritten by the testator disinherited the testator’s husband. In order to confirm that no undue influence was involved and that the testator was of sound mind, it was important that the safeguards of a proper execution, including having witnesses, were in place.

The court also noted that the testator and her niece had other options to ensure their stated goal of ensuring that the niece received the testator’s estate was achieved.

Thus, the court refused to admit the will to probate.

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