N.Y. Estates, Powers and Trusts Law 3-5.1 – Formal validity, intrinsic validity, effect, interpretation,
§ 3-5.1 Formal validity, intrinsic validity, effect, interpretation,
Terms Used In N.Y. Estates, Powers and Trusts Law 3-5.1
- Decedent: A deceased person.
- Donee: The recipient of a gift.
- Donor: The person who makes a gift.
- Inter vivos: Transfer of property from one living person to another living person.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Lien: A claim against real or personal property in satisfaction of a debt.
- Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
- Personal property: All property that is not real property.
- Probate: Proving a will
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Testator: A male person who leaves a will at death.
revocation or alteration of testamentary dispositions of, and
exercise of testamentary powers of appointment over property
by wills having relation to another juristion
(a) As used in this section:
(1) "Real property" means land or any estate in land, including leaseholds, fixtures and mortgages or other liens thereon.
(2) "Personal property" means any property other than real property, including tangible and intangible things.
(3) "Formal validity" relates to the formalities prescribed by the law of a jurisdiction for the execution and attestation of a will.
(4) "Intrinsic validity" relates to the rules of substantive law by which a jurisdiction determines the legality of a testamentary disposition, including the general capacity of the testator.
(5) "Effect" relates to the legal consequences attributed under the law of a jurisdiction to a valid testamentary disposition.
(6) "Interpretation" relates to the procedure of applying the law of a jurisdiction to determine the meaning of language employed by the testator where his intention is not otherwise ascertainable.
(7) "Local law" means the law which the courts of a jurisdiction apply in adjudicating legal questions that have no relation to another jurisdiction.
(b) Subject to the other provisions of this section:
(1) The formal validity, intrinsic validity, effect, interpretation, revocation or alteration of a testamentary disposition of real property, and the manner in which such property descends when not disposed of by will, are determined by the law of the jurisdiction in which the land is situated.
(2) The intrinsic validity, effect, revocation or alteration of a testamentary disposition of personal property, and the manner in which such property devolves when not disposed of by will, are determined by the law of the jurisdiction in which the decedent was domiciled at death.
(c) A will disposing of personal property, wherever situated, or real property situated in this state, made within or without this state by a domiciliary or non-domiciliary thereof, is formally valid and admissible to probate in this state, if it is in writing and signed by the testator, and otherwise executed and attested in accordance with the local law of:
(1) This state;
(2) The jurisdiction in which the will was executed, at the time of execution; or
(3) The jurisdiction in which the testator was domiciled, either at the time of execution or of death.
(d) A testamentary disposition of personal property intrinsically valid under the law of the jurisdiction in which the testator was domiciled at the time the will was executed shall not be affected by a subsequent change in the domicile of the testator to a jurisdiction by the law of which the disposition is intrinsically invalid.
(e) Interpretation of a testamentary disposition of personal property shall be made in accordance with the local law of the jurisdiction in which the testator was domiciled at the time the will was executed.
(f) Whether a testamentary disposition of personal property is effectively revoked or altered by the provisions of a subsequent testamentary instrument or by a physical act to or upon the will by which the testamentary disposition was made is determined by the law of the jurisdiction in which the testator was domiciled at the time the subsequent instrument was executed or the physical act performed.
(g) Subject to paragraphs (d), (e) and (f), the intrinsic validity, effect, revocation or alteration of a testamentary disposition by which a power of appointment over personal property is exercised, and the question of whether such power has been exercised at all, are determined by:
(1) In the case of a presently exercisable general power of appointment, the law of the jurisdiction in which the donee of such power was domiciled at the time of death.
(2) In the case of a general power of appointment exercisable by will alone or a special power of appointment:
(A) If such power was created by will, the law of the jurisdiction in which the donor of the power was domiciled at the time of death.
(B) If such power was created by inter vivos disposition, the law of the jurisdiction which the donor of the power intended to govern such disposition.
(C) If the donor is himself the donee of a general power of appointment exercisable by will alone, the law of the jurisdiction in which the donor of the power was domiciled at the time of death.
(3) The formal validity of a will by which any power of appointment over personal property is exercised is determined in accordance with paragraph (c) on the basis that the testator referred to therein is the donee of such power.
(h) Whenever a testator, not domiciled in this state at the time of death, provides in his will that he elects to have the disposition of his property situated in this state governed by the laws of this state, the intrinsic validity, including the testator's general capacity, effect, interpretation, revocation or alteration of any such disposition is determined by the local law of this state. The formal validity of the will, in such case, is determined in accordance with paragraph (c).
(i) Notwithstanding the definition of "real property" in subparagraph (a) (1), whether an estate in, leasehold of, fixture, mortgage or other lien on land is real property governed by subparagraph (b) (1) or personal property governed by subparagraph (b) (2) is determined by the local law of the jurisdiction in which the land is situated.