contract-law new-york-state wills probate
Can a modifiable appendix be a valid and enforceable extension of a Last Will &amp; Testament?
<p>I'm in NY state (US). I am writing a will and am at the article where I name gift designations for specific beneficiaries (son #1 gets my old slippers, son #2 gets my belly button lint, etc.).</p>
<p>This list may very well change over time: I will almost certainly think of new things to add every one in a while. So I am thinking about wording the article to reference any beneficiary designations in an appendix. For instance, something like:</p>
<blockquote>
<p>&quot;<em>Appendix C shall list all of my gifts and their designated primary and secondary beneficiaries.</em>&quot;</p>
</blockquote>
<p>Then in <strong>Appendix C</strong>:</p>
<pre><code>GIFT                     DATE ADDED      PRIMARY BENEFICIARY
==============================================================================
Old Slippers             09/19/2022      Son #1, 123 Testville Rd, Test City, NY 12345
Belly Button Lint        09/19/2022      Son #2, 234 Test Court, Testtown, NY 23456
Chickenwing Under Couch  11/05/2024      Son #1, 123 Testville Rd, Test City, NY 12345
</code></pre>
<p>I'm thinking this way I can add entries to the Appendix without rewriting the verbiage of the main Will.</p>
<p>NYS has a requirement that the Will is signed by 2 Witnesses and (I believe -- keep me honest) notarized. So I'm hoping this is a way for me to add items to the Appendix without needing to re-sign, re-witness and re-notarize every time I think of something else. Is this strategy valid &amp; enforceable?</p>

<p><strong>This is allowed in Colorado.</strong></p>
<p>Colorado's version of the Uniform Probate Code authorizes such a document for tangible personal property which is usually called a &quot;Personal Property Memorandum.&quot; This is authorized by <a href="https://law.justia.com/codes/colorado/2020/title-15/article-11/section-15-11-513/" rel="nofollow noreferrer">Colorado Revised Statutes § 15-11-513</a>. The section of Colorado's probate code states:</p>
<blockquote>
<p>Whether or not the provisions relating to holographic wills apply, a
will may refer to a written statement or list to dispose of items of
tangible personal property not otherwise specifically disposed of by
the will, other than money. To be admissible under this section as
evidence of the intended disposition, the writing shall be either in
the handwriting of the testator or be signed by the testator and shall
describe the items and the devisees with reasonable certainty. The
writing may be referred to as one to be in existence at the time of
the testator's death; it may be prepared before or after the execution
of the will; it may be altered by the testator after its preparation;
and it may be a writing that has no significance apart from its effect
on the dispositions made by the will.</p>
</blockquote>
<p><strong>New York State Law</strong></p>
<blockquote>
<p>NYS has a requirement that the Will is signed by 2 Witnesses and (I
believe -- keep me honest) notarized. So I'm hoping this is a way for
me to add items to the Appendix without needing to re-sign, re-witness
and re-notarize every time I think of something else. Is this strategy
valid &amp; enforceable?</p>
</blockquote>
<p><em>This is generally not permitted in New York State</em></p>
<p>The legal formalities for the execution of wills and trusts in New York States are among the most strict in the United States (Florida and Maine have been more strict from time to time).</p>
<p>This cannot be done in a way that is valid and enforceable in New York State.</p>
<p>One can determine this from a review of the relevant New York State Statute which is called the <a href="https://www.nysenate.gov/legislation/laws/EPT/A3" rel="nofollow noreferrer">Estate, Powers, and Trusts Law</a> (EPTL), that does not contain a parallel provision to the Colorado statutory section.</p>
<p>Therefore, in New York States, all dispositive provisions of a Will related to tangible personal property must be executed with the same formalities as any other Will or Codicil (i.e. <a href="https://www.nysenate.gov/legislation/laws/EPT/3-2.1" rel="nofollow noreferrer">it must be signed by the testator and two witnesses, a notarization is not required</a>).</p>
<p><em>Oral and unwitnessed handwritten wills are rarely allowed in New York State</em></p>
<p>New York State does recognize oral wills (called nuncupative wills) and wills in the handwriting of the person making them  (called holographic wills) as well, but only in very limited circumstances. The <a href="https://www.nysenate.gov/legislation/laws/EPT/3-2.2" rel="nofollow noreferrer">pertinent provision of the EPTL</a> state:</p>
<blockquote>
<p>(a) For the purposes of this section, and as used elsewhere in this
chapter:</p>
<p>(1) A will is nuncupative when it is unwritten, and the making thereof
by the testator and its provisions are clearly established by at least
two witnesses.</p>
<p>(2) A will is holographic when <strong>it is written entirely in the
handwriting of the testator</strong>, and is not executed and attested in
accordance with the formalities prescribed by 3-2.1.</p>
<p>(b) <strong>A nuncupative or holographic will is valid only if made by:</strong></p>
<p>(1) <strong>A member of the armed forces of the United States while in
actual military or naval service during a war, declared or undeclared,
or other armed conflict in which members of the armed forces are
engaged.</strong></p>
<p>(2) <strong>A person who serves with or accompanies an armed force engaged
in actual military or naval service during such war or other armed
conflict.</strong></p>
<p>(3) <strong>A mariner while at sea.</strong></p>
<p>(c) <strong>A will authorized by this section becomes invalid:</strong></p>
<p>(1) If made by a member of the armed forces, <strong>upon the expiration of
one year following his discharge from the armed forces</strong>.</p>
<p>(2) If made by a person who serves with or accompanies an armed force
engaged in actual military or naval service, <strong>upon the expiration of
one year from the time he has ceased serving with or accompanying such
armed force.</strong></p>
<p>(3) If made by a mariner while at sea, <strong>upon the expiration of three
years from the time such will was made.</strong></p>
</blockquote>
<p><em>Wills valid where executed will generally be honored</em></p>
<p>If a Will accompanied by a Personal Property Memorandum were drafted and executed in Colorado while someone was domiciled there, and then was presented to a Surrogate's Court in New York State for probate, because the person who wrote it was domiciled in New York State when they died, however, the New York courts might honor the Personal Property Memorandum on the theory that the validity of the execution of a Will is usually governed by the law of the place where it is signed and not by the law of the place where it is probated.</p>
<p><strong>The alternative of a revocable trust in New York State</strong></p>
<p>A workaround somewhat similar to a personal property memorandum could be done with a revocable trust, but this has its own limitations.</p>
<p><a href="https://www.nysenate.gov/legislation/laws/EPT/7-1.17" rel="nofollow noreferrer">In New York State</a> a trust or amendment to a trust not created by a last will and testament must be either (1) signed and notarized by the creator of the trust and also by the trustee if there is one separate from the creator of the trust, or (2) signed by the creator of the trust and witnessed by two witnesses in essentially the same way that a will would be witnessed.</p>
<p>Unlike most U.S. states, New York State does not recognize trusts that are signed but are not notarized or witnessed, and unlike most U.S. States, New York State does not recognize orally created trusts.</p>
<p><em>Trusts validly formed and amended outside of New York will generally be honored</em></p>
<p>This is, of course, assuming in both cases that New York State law governs the formation of the trust. New York State choice of law rules, however, will generally recognize the validity of a trust formed with formalities that were valid in the place where it was executed if the person executing it was domiciled there.</p>
