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Is a Handwritten Will Valid in New York?

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holographic willA simple will is the most commonly used estate planning document, and there are specific steps that must be taken to execute a valid will.

In order to create a will that will stand up under legal scrutiny, you must be at least 18 years old, and you have to be fully competent. The will must be signed in front of two witnesses, and you have to state that you know that the document you are signing is a will.

Your witnesses must sign the document as well while you are present. A will does not have to be notarized, but there is a reason why you may want to go to a notary.

When a will is used as an asset transfer vehicle, it is admitted to probate, and the Surrogate’s Court provides supervision during the administration process. There is a proving of the will during probate, and during this process, the witnesses are contacted.

If you have a will notarized in advance, it will become a self-proving will, and there will be no witness contact requirement. This will streamline the administration process.

A holographic will is a will that has been drawn up by hand. In New York, holographic wills are not legal unless the will is created by a member of the armed forces during an armed conflict.

The nuncupative will is an oral will, and this type of will could be valid under wartime circumstances. Outside of these exceptions, a will must be spelled out in writing in a hard copy document.

Thomas Kinkade Holographic Will Case

In 2012, the self-proclaimed “Painter of Light,” Thomas Kinkade, passed away at the age of 54. He had alcohol and diazepam, which is generic Valium, in his system when he passed away. The cause of death was acute intoxication.

Kinkade had a $100 million fortune at the time of his passing, and he had been estranged from his wife, Nanette, for two years. She had filed for divorce, but it was not finalized, and Kinkade was living with his girlfriend, Amy Pinto-Walsh.

After his death, Kinkade’s wife kept Pinto-Walsh away from the funeral, and she sued her for breach of confidentiality. Clearly, there were hard feelings, and things didn’t get any better when Pinto-Walsh produced two holographic wills that were allegedly created by Thomas Kinkade.

The first one left Amy Pinto-Walsh $10 million, Kinkade’s home, and the property next door. In the second will, the same real property was to be transferred to Pinto-Walsh, but there was a clarification with regard to the purpose of the $10 million.

Kinkade stated that the money should be used to establish a museum that would pay homage to his works. The wills were very sloppily written, so there was a question about their validity, but someone that is intoxicated can execute a valid will.

In the end, the two parties came to an understanding, and they reached a secret settlement.

Legal Counsel Is Invaluable

This was a very messy situation that could have been avoided if Thomas Kinkade would have worked with an attorney to provide for Pinto-Walsh. His true wishes would have been expressed in no uncertain terms, there would be no cause for disagreements.

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Neil O'Reilly
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About Neil O'Reilly

Cornelius (“Neil”) J. O’Reilly is an attorney whose practice is focused in the areas of Estate Planning, Estate Administration, and Business Succession Planning. His main goal is to demystify Estate Planning for his clients so they can gain peace of mind knowing that they have provided for their families by passing along their hard-earned wealth and by minimizing the stress they will experience if the client becomes incapacitated or dies. He has created the firm with the belief that an estate plan should be driven by the unique needs and desires of each unique client. That’s why there are no “cookie cutter” plans or canned solutions offered to any client. Instead, Neil helps clients identify their goals and then builds estate plans based on those goals.