When is a Will not a Will?

Sometimes people write down their wishes or give written directions regarding what they want done after they die.  Sometimes they even call it a Will.

Will these be considered a Will?   NO

Sometimes people who would benefit from such writings ask me, as a lawyer, to bring these writings to the Courts attention.  They are essentially saying “Surely the Court will give SOME weight to the deceased person’s written statements.”  Will I make this argument?  NO

In New York, the only writings that will be considered a Will are those that fit the definition of a Will.  Briefly stated, “signed at the end in front of two witnesses”.

Not one witness.

Not “notarized”.

Can LegalZoom and other home made Wills qualify as Wills?  YES, if they meet the definition of a Will.  Most home made wills, where people have researched how to do it, actually turn out to be Wills.

But many attempts to make a Will, or related attempts to give directives after a person dies, FAIL.

When I see this, especially when the attempt looks legit, it’s pretty tragic. Sometimes it’s tragic because of the amount of money involved.  But even worse is the idea that the person wanted something done which would help somebody they cared about, and it isn’t going to happen.

I won’t take a case where we would be trying to make something a Will that isn’t, or try to convince the Court to do “the right thing”.  My advice in those cases is to tell the client to contact the people who benefit from the writing not being a Will and ask THEM to do the right thing.  Oh…and be nice when you ask.  Does this ever work?  Rarely, but when reasonably nice, honorable, ethical people are involved, sometimes they work something out.

More often though, such situations result in a hurt that lasts a lifetime.

In consideration of the above, if someone wants to “get their affairs in order”, they should do it right.  If you know someone in that situation and they need help, by all means HELP THEM.

Do I think the right thing is to encourage them to have a lawyer help them?  YES  But even a LegalZoom will or an effort where you try to get it right is better then a signed “letter”.

If you can’t find a lawyer who is affordable for this, look harder.  Many lawyers are willing to do basic Wills for surprisingly low fees.

I’ll go one further…..If someone fairly local needs a Will and is in the hospital, or confined to home, if they are able to tell me what they want, I WILL MAKE A HOUSE CALL TO GET THIS DONE.  It’s that important.  I know I am not alone in this approach.

Every time I do this, I know I scored a plus one in the cosmic karma of the universe.

So I got THAT going for me…which is nice.