If you have been asking yourself these question, the answer is likely "now." There are several reasons why you may not want to wait. The most obvious one is that tomorrow is promised to no one. The second reason is that it is a good practice to review the terms of your Will on a yearly basis to assess the consequences of changes in family composition, financial updates, and changes in the tax law that may affect your estate. The third reason is one that is often overlooked, that you may not always have the testamentary capacity to make a Will. I have covered this topic in a previous post.
Making or changing a Will is a serious endeavor, and it should never be undertaken for negative reasons, such as to spite a relative or friend. In New York, the making of a subsequent Will executed with all required formalities constitutes a revocation of any previously executed valid Wills and their codicils. In New York, a partial revocation by physical act, such as words added to a Will after it has been signed and witnessed, is not recognized and will have no effect on the Will.
A Will can also be revoked if it is destroyed by a physical act. If the subsequent Will is later destroyed by a physical act, such as cutting it up or burning it or crossing out the testator's signature, the prior Will that it replaced will not be revived in New York. The earlier Will is legally invalid, and the decedent will have died intestate.
The case of Mabel Waingrow of Blooming Grove, New York provides a cautionary tale. The owner of Town & Country Coffee Shop on Route 94, Waingrow died in 2003 at the age of 99 leaving an estate valued at $990,000. She had outlined her husband, her son, and her siblings. Her closest relatives were her five great-nieces and -nephews whom she never knew because they lived abroad. A diligent attorney who prepared Waingrow's Will in 2000 had discovered the distant relatives.
Waingrow had closed her coffee shop when she had turned 90, and without the constant social interaction she soon became a lonely recluse, beset by thoughts that people were trying to steal from her. To her rescue came Nick Stagliano, a former criminal investigator for the Orange County District Attorney's Office who befriended her and took care of her. According to a story in the local Times Herald-Record, Stagliano was the only one present for her 99th birthday.
In 2001 Waingrow, who had a habit of writing a new Will to benefit whoever was friendliest to her and to spite those who had "unfriended" her, executed a new Will naming Stagliano as the sole beneficiary of her entire estate. The next day, the Orange County Court named him Waingrow's legal guardian because she could no longer take care of her affairs. Her great-nieces and -nephews were not informed of this appointment.
Five years after her death, one of her grand-nieces filed suit contesting the Will claiming undue influence . The case was settled shortly after the trial began. Waingrow's five great-nieces and nephews received at least $500,000 of the estate, with the remainder going to Stagliano. Stagliano also agreed to give up his role as executor of the estate.
In her multiple executions of Wills, Waingrow chanced revoking a valid Will because her failing mental health made her capacity to execute a valid Will questionable. Had her 2001 Will been declared invalid at trial due to undue influence, then she would have been deemed to have died intestate.
When a person dies without a Will, New York uses as its default an intestate distribution system called per capita (“each head”) at each generation. In this system, each person is weighed equally. By virtue of their presence on the family tree, no one can be disinherited.
New York also has a “laughing heir” statute (EPTL §4-1.1(6)). A “laughing heir” is someone entitled to inherit by law who is so remotely connected to the deceased that he or she would not feel any sorrow at hearing of the death. To prevent this occurrence, New York cuts off heirs at the grandchildren of the deceased: “For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.” No one more remote, such as a great-grandchild, may inherit. After that, the property of the deceased escheats to the State.
Since Waingrow had no grandchildren, and since her siblings had predeceased her, her surviving grand-nieces and -nephews risked having the entire estate escheat to the State if they pressed having Waingrow's Will declared invalid because of undue influence on the part of Stagliano. The prior Will executed in 2000 could not be revived under New York law. Thus the only way that the grand-nieces and -nephews could be certain to receive any money from the estate was to settle with Stagliano.
The case of Mabel Waingrow points out once again the necessity of working with an attorney who will draft your Will and tailor it to your individual needs. Though it may seem contrary to nature, children at times do predecease their parents, as Mabel's son did, and this reality must somehow be accounted for in your Will. Your attorney will work through some scenarios with you to make sure that all of your wishes are met and executable. No boilerplate form can do this kind of reasoned and careful drafting befitting your individual needs.
It is also a good practice to make a yearly appointment with your attorney to review your Will. Things in your life will surely change from year to year, and it is a good practice to get in the habit of talking through those changes with your attorney. Your attorney will be able to advise you as to any impact on your estate plan.
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