Drafting New York Wills § 17.04
New York Wills and Related Documents Fourth Edition
Copyright 2010, Matthew Bender & Company, Inc., a member of the LexisNexis
Part II Drafting New York Wills
Subpart G Sample Wills
CHAPTER 17 Various Types of Wills
1-17 Drafting New York Wills § 17.04
§ 17.04 Conditional Wills In General
testator may wish his will to become effective or ineffective under certain
conditions, for example, "if I die on my trip to Istanbul, but it is to
become ineffective, if I return from that trip." To so provide is to
create a "conditional will."1
Thus, where a testator wished his will to become effective only in the event
that he should die before his wife, and his wife died before him, the will was
held to be ineffective because it was a "conditional will."2
A conditional will is to be distinguished from a will which merely recites the
reasons why the testator is making the will at the time of its execution.
Should the testator recite the reason for his making a will, for example,
"should anything happen to me," that is merely an explanation of the
reason for making the will but it is not a conditional will.3
Extrinsic evidence is admissible to determine whether or not the will was a
conditional one.4 § 17.04 Form 1: Conditional Will Provision
Should I die [describe condition; for example: during the course of my
trip to or from Istanbul, which trip I expect to take in the near future], I [name
testator] residing in the County of [county], State of New York, do
hereby make, publish, and declare this to be my Last Will and Testament, hereby
revoking any and all wills and codicils by me at any time heretofore made.
Should I [describe condition revoking will; for example:
Istanbul after the completion of the said trip], this Will shall be revoked and
of no effect.
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Footnote 1. Matter of Poonarian, 234 N.Y. 329, 137 N.E. 606 (1922); Matter of Webb, 122 Misc. 129, 202 N.Y.S. 346 (Sur. Ct. New
York County 1923), aff'd, 208 A.D. 793, 203 N.Y.S. 958 (1st Dep't
Matter of Watts, 71 Misc. 2d 621, 336 N.Y.S.2d 781 (Sur. Ct.
Hamilton County 1972).
Footnote 3. Matter of Marques, 123 N.Y.S.2d 877 (Sur. Ct. Queens County
Footnote 4. See Matter of Pascal, 309 N.Y. 108, 127 N.E.2d 835 (1955), on
remand, 2 Misc. 2d 337, 152 N.Y.S.2d 185 (Sur. Ct. New York County
1956), aff'd, 4 A.D.2d 941, 167 N.Y.S.2d 1002 (1st Dep't 1957).
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