5.31 A. Historical Development And Definition

• Jurisdiction: New York

A. Historical Development and Definition

At common law the right to dispose of real property by will did not exist. Early Roman and, eventually, English statutes authorized the disposition of real property by will. This statutory right, carried over in colonial times, still exists today. It is governed by EPTL article 3, which covers testamentary capacity, formalities of execution, general rules governing disposition, revocation and rules governing wills related to other jurisdictions. Article 14 of the SCPA covers the judicial proceedings used in proving, construing and administering the provisions of a will.

The courts have regarded the right to dispose of real property by wills as statutory in origin and a privilege, not a natural or inherent right. As such, the right is subject to all limitations that the legislature may impose. Wills therefore must comply strictly with requirements as set forth in the governing statutes.⁶⁹⁶

A will may be defined as an oral declaration or written instrument, made as prescribed by statute and to take effect upon death, whereby a person disposes of his property or body, exercises a power, appoints a fiduciary or makes any other provision for the administration of his estate.⁶⁹⁷ The instrument is revocable during the person’s lifetime,⁶⁹⁸ subject, however, to the effect of a valid contract to make a will or a contract not to revoke a will.

Generally, a will must be executed and attested in accordance with the formal requirements set forth in EPTL 3-2.1, which are discussed below in § See 2. Formalities of Execution and Attestation. However, special provisions exist with respect to the nuncupative (oral) and holographic (written in the handwriting of the testator) wills of members of the armed forces, mariners at sea and certain other individuals.⁶⁹⁹ The most significant difference between a will and a deed or other conveyance is that the conveyance transfers a present interest effective upon the delivery of the instrument and is irrevocable upon that delivery; a will does not transfer any interest of the testator until the testator dies and is revocable until then.⁷⁰⁰

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^[696] . Irving Trust Co. v...