§ 3-5.1 — Formal validity, intrinsic validity, effect, interpretation,

New York § 3-5.1

• Jurisdiction: New York
• Law EPT: Estates, Powers & Trusts
• Part 5: Rules Governing Wills Having Relation to Another Jurisdiction
• Art. 3: Substantive Law of Wills

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§ 3-5.1 Formal validity, intrinsic validity, effect, interpretation,\n revocation or alteration of testamentary dispositions of, and\n exercise of testamentary powers of appointment over property\n by wills having relation to another juristion\n (a) As used in this section:\n (1) "Real property" means land or any estate in land, including\nleaseholds, fixtures and mortgages or other liens thereon.\n (2) "Personal property" means any property other than real property,\nincluding tangible and intangible things.\n (3) "Formal validity" relates to the formalities prescribed by the law\nof a jurisdiction for the execution and attestation of a will.\n (4) "Intrinsic validity" relates to the rules of substantive law by\nwhich a jurisdiction determines the legality of a testamentary\ndisposition, including the general capacity of the testator.\n (5) "Effect" relates to the legal consequences attributed under the\nlaw of a jurisdiction to a valid testamentary disposition.\n (6) "Interpretation" relates to the procedure of applying the law of a\njurisdiction to determine the meaning of language employed by the\ntestator where his intention is not otherwise ascertainable.\n (7) "Local law" means the law which the courts of a jurisdiction apply\nin adjudicating legal questions that have no relation to another\njurisdiction.\n (b) Subject to the other provisions of this section:\n (1) The formal validity, intrinsic validity, effect, interpretation,\nrevocation or alteration of a testamentary disposition of real property,\nand the manner in which such property descends when not disposed of by\nwill, are determined by the law of the jurisdiction in which the land is\nsituated.\n (2) The intrinsic validity, effect, revocation or alteration of a\ntestamentary disposition of personal property, and the manner in which\nsuch property devolves when not disposed of by will, are determined by\nthe law of the jurisdiction in which the decedent was domiciled at\ndeath.\n (c) A will disposing of personal property, wherever situated, or real\nproperty situated in this state, made within or without this state by a\ndomiciliary or non-domiciliary thereof, is formally valid and admissible\nto probate in this state, if it is in writing and signed by the\ntestator, and otherwise executed and attested in accordance with the\nlocal law of:\n (1) This state;\n (2) The jurisdiction in which the will was executed, at the time of\nexecution; or\n (3) The jurisdiction in which the testator was domiciled, either at\nthe time of execution or of death.\n (d) A testamentary disposition of personal property intrinsically\nvalid under the law of the jurisdiction in which the testator was\ndomiciled at the time the will was executed shall not be affected by a\nsubsequent change in the domicile of the testator to a jurisdiction by\nthe law of which the disposition is intrinsically invalid.\n (e) Interpretation of a testamentary disposition of personal property\nshall be made in accordance with the local law of the jurisdiction in\nwhich the testator was domiciled at the time the will was executed.\n (f) Whether a testamentary disposition of personal property is\neffectively revoked or altered by the provisions of a subsequent\ntestamentary instrument or by a physical act to or upon the will by\nwhich the testamentary disposition was made is determined by the law of\nthe jurisdiction in which the testator was domiciled at the time the\nsubsequent instrument was executed or the physical act performed.\n (g) Subject to paragraphs (d), (e) and (f), the intrinsic validity,\neffect, revocation or alteration of a testamentary disposition by which\na power of appointment over personal property is exercised, and the\nquestion of whether such power has been exercised at all, are determined\nby:\n (1) In the case of a presently exercisable general power of\nappointment, the law of the jurisdiction in which the donee of such\npower was domiciled at the time of death.\n (2) In the case of a general power of appointment exercisable by will\nalone or a special power of appointment:\n (A) If such power was created by will, the law of the jurisdiction in\nwhich the donor of the power was domiciled at the time of death.\n (B) If such power was created by inter vivos disposition, the law of\nthe jurisdiction which the donor of the power intended to govern such\ndisposition.\n (C) If the donor is himself the donee of a general power of\nappointment exercisable by will alone, the law of the jurisdiction in\nwhich the donor of the power was domiciled at the time of death.\n (3) The formal validity of a will by which any power of appointment\nover personal property is exercised is determined in accordance with\nparagraph (c) on the basis that the testator referred to therein is the\ndonee of such power.\n (h) Whenever a testator, not domiciled in this state at the time of\ndeath, provides in his will that he elects to have the disposition of\nhis property situated in this state governed by the laws of this state,\nthe intrinsic validity, including the testator's general capacity,\neffect, interpretation, revocation or alteration of any such disposition\nis determined by the local law of this state. The formal validity of the\nwill, in such case, is determined in accordance with paragraph (c).\n (i) Notwithstanding the definition of "real property" in subparagraph\n(a) (1), whether an estate in, leasehold of, fixture, mortgage or other\nlien on land is real property governed by subparagraph (b) (1) or\npersonal property governed by subparagraph (b) (2) is determined by the\nlocal law of the jurisdiction in which the land is situated.\n