The answer is Yes.
In New York, EPTL §3-1.1 provides: “Every person eighteen years of age or over, of sound mind and memory, may by Will dispose of real and personal property and exercise a power to appoint such property.”
The formal requirements for execution and attestation of Wills is set forth in EPTL §3-2.1.
In relevant part, EPTL §3-2.1 provides that every Will:
- Must be in writing (EPTL §3-2.1(a)) ;
- Must be signed at the end by the Testator (EPTL §3-2.1(a)(1)) ;
- Must be signed by the Testator in the presence of the attesting witnesses (EPTL §3-2.1(a)(2)) ;
- Must be declared by the Testator to the attesting witnesses to be his Will (EPTL §3-2.1(a)(3)); and
- Must be attested by at least two witnesses (EPTL §3-2.1(a)(4)).
If an attorney is present when the Testator executes his Will, a presumption arises that the Testator satisfied the requirements of EPTL §3-2.1. Matter of Cooney, N.Y.L.J., December 11, 2007 at 39, Col. 2 (Surrogate’s Court, Kings County). Further, affidavits of attesting witnesses opining that Testator appeared to be of sound mind and memory to make the Will creates a presumption of testamentary capacity. In re Estate of Friedman, 26 AD3d 723, 809 NYS2d 667.
A claim that a decedent lacked testamentary capacity due to being under the influence of alcohol or drugs, or was not of sound mind and memory at the time the Will was executed, becomes a question of fact. At the time the will was executed, was the decedent cognizant of the natural objects of his bounty, did he or she fully appreciate the extent of his/her property, and understand the provisions contained in the Will?
The attorney supervising the execution of the Last Will and Testament will normally engage in conversation and ask questions in the presence of the attesting witnesses to elicit responses enabling both the Attorney to verify, and the witnesses to draw their conclusions, as to mental capacity
Obviously, if the will is executed in a tavern, it is prudent for the attorney to verify that the Testator was not drinking prior to the signing of the Will and to confirm that there would be no drinking by the Testator or the attesting witnesses until after the Will has been properly executed.
Despite one’s history, a person needs only to be sober at the time of making the will.
Howard Protter is a partner practicing municipal law, as well as business and estates law. He can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.