Does New York R-E-S-P-E-C-T Handwritten Wills?

Aretha Franklin, the Queen of Soul, died in Michigan in 2018, leaving not one but two handwritten wills. The 2010 will was found in a locked cabinet, signed on every page and notarized, while the 2014 will, which the courts would usually view as superseding the first and which was written in a spiral notebook and signed only on the last page, was found beneath a couch cushion. Both documents lacked the usual formalities of a will, such as witnesses, and each had different provisions for Aretha’s four sons. Predictably, litigation ensued.

At trial, the jury decided that the 2014 will was valid under Michigan law, even though handwritten (such wills are known as “holographic wills”). But not all states recognize handwritten wills as valid. New York, for example, does not, except for very limited circumstances.

Only certain people are permitted to make holographic wills in New York, and only in certain circumstances. In New York, a holographic will can only be made by (1) a member of the US armed forces while in the military or naval service during an armed conflict in which members of the armed forces are engaged, (2) a person who serves with or accompanies a member of the armed forces engaged in service during such armed conflict, and (3) a mariner at sea. However, holographic wills are generally valid for only a limited period of time.

If the testator is a member of the armed forces, the holographic will become invalid one year from his/her discharge from the armed forces. For a person serving with the armed forces, the holographic will is also valid for only one year from the time he or she ceases serving. A holographic will made by a mariner at sea is valid for three years from the date the will was made. So, even if a holographic will is valid when made, it has a “shelf life.”

Aretha Franklin’s holographic will would not have been respected under New York law as a valid will. The circumstances permitting a valid holographic will under New York law are extremely limited. Obviously, it is best to consult with an attorney that specializes in estate planning to make sure that your will is prepared and executed properly under New York law so your wishes may be carried out at your death.

This article appeared in the September 2023 issue of Stroll Lloyd Harbor.