Do Not Unstaple Your Will in New York. Here’s why:
In the realm of estate planning, a Last Will and Testament stands as a crucial document, outlining your wishes regarding the distribution of your assets after you pass away. It’s a cornerstone of ensuring your legacy is honored and your loved ones are provided for. However, in the state of New York, there’s a common misconception that unstapling your will is a harmless action. On the contrary, it can lead to significant complications and undermine the very purpose of the document.
There are a number of reasons why you should resist the urge to unstaple your Will in New York:
1. Legal Validity: In New York, a will must adhere to specific legal formalities to be considered valid. Among these requirements is the necessity for the will to be properly executed and witnessed. Unstapling your will might unintentionally alter its appearance or lead to pages becoming separated, raising doubts about its authenticity and potentially rendering it invalid.
2. Preservation of Intent: Your will reflects your intentions regarding the distribution of your assets and the care of your loved ones. Unstapling it risks altering its content or causing pages to go missing, which could result in misinterpretation or disputes among beneficiaries. Keeping your will intact ensures that your wishes are accurately represented and respected.
3. Preventing Alterations: Stapling your will safeguards it against unauthorized alterations or tampering. Any changes made to the document after it has been signed and witnessed can raise suspicions of foul play or coercion. By leaving your will stapled, you maintain a clear record of its original state, reducing the likelihood of disputes over its authenticity.
4. Ease of Access: While it might seem convenient to separate pages for easier reading or copying, doing so can actually make it more difficult for your executor or beneficiaries to navigate the document when the time comes. Keeping your will stapled ensures that all relevant pages are kept together, facilitating a smoother probate process and ensuring that nothing is overlooked.
What Happens if Your Will is Unstapled?
When the Will is offered for probate and filed with the Surrogate’s Court, the clerk will check for staples and staple holes. The clerk will also check to see how the Will was originally fastened together. If the Will did not have staple holes but was held together with a clip, the Clerk will make note of this as well.
If the Will is unstapled or if the Will contains staple punctures, the Court will want an explanation. If the Will was never stapled, the Court will want an explanation. If the Will is held together with a clip, the Court will want an explanation.
What Type of Explanation Can Suffice?
If the Will has been unstapled, the Court will want an affidavit from the person who found the Will to explain whether it was originally unstapled when the person found it or whether the person who found it thereafter unstapled it. Theoretically, the Affidavit should state that the person located the Will, unstapled it to make copies, and then stapled it back without removing or adding or deleting any content or pages.
If the person who found the Will did not unstaple it but rather delivered it to a law firm and somebody from the law firm unstapled it, then the Court will want to know who at the law firm unstapled it and why. The person will need to prepare and sign an affidavit about the chain of custody of the Will.
If the Will was never stapled, the Court will want an affidavit from the person who found the Will indicating that it was never stapled.
Either way, you must overcome the presumption that the Will has been tampered with and provide sufficient evidence to the Court that no pages were removed, added, or deleted.
If you have concerns about the contents or organization of your will, it’s advisable to seek guidance from a qualified estate planning attorney rather than taking matters into your own hands. An experienced attorney can provide invaluable advice on how to structure your will effectively and ensure that it complies with New York state laws.
For more information, please contact NYC Probate Litigation, Guardianship, NYC Probate and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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