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You can have a Codicil without a Will – Instrument held Valid

[In this uncontested proceeding, Jongho Park, Decedent Bok Soon Kim's son, asks the court to admit to probate a document entitled "Codicil to Last Will and Testament of Bok Soon Kim," dated August 7, 2008 ("codicil"), as the testamentary instrument of Decedent, and to issue letters to him and Michael Miller, Esq., as co-fiduciaries.1 Petitioner maintains that, despite due diligence, no will or testamentary instrument of Decedent, other than the propounded one, has been located.]

Law: [As in any probate application, before admitting this instrument to probate the court must be satisfied that it was duly executed and that it reflects the decedent's wishes. Upon the basis of the proof adduced, the court is so satisfied. The proof establishes that the execution of the propounded instrument was performed in accordance with the requirements of EPTL 3-2.1 at a time when decedent was mentally competent and was not under any restraint. That an instrument is styled as a codicil rather than a will should not affect its admissibility to probate when, as here, the instrument, standing alone, is "complete in and of itself and independent of the provisions of the will" (Matter of Salvan, 132 AD2d 662, 664 [2d Dept 1987]). Under these circumstances, the instrument is "a separate testamentary instrument entitled to be admitted to probate separately" (id.).]

The Court found that the Codicil, standing alone, could suffice as a testamentary instrument, or the same thing as a will that could dispose of property as the person who made the will saw fit:

Law: [This holding is consistent with precedent admitting codicils as independent testamentary instruments so long as they are executed pursuant to statutory requirements. (Matter of Emmons, 110 App Div 701, 704 [1st Dept 1906] [if the codicil is complete in itself as to be capable of execution, it must stand and be given force of valid testamentary disposition]; Newcomb v. Webster, 113 NY 191, 197 [1889]; see also Matter of Smith, 165 Misc 36 [Sur Ct, Westchester County 1937], affd 253 App Div 731 [2d Dept 1937].) In fact, any writing may be a will if executed with the requisite formalities, and the name by which the writing is called "has no deterrent effect" on its quality. (Matter of Smith, 165 Misc at 41; see also Matter of Emmons, 110 App Div at 704.)]

Conclusion: “Here, the instrument reflects Decedent's complete wishes with respect to the disposition of her sole U.S. asset, which leads to the conclusion that Decedent, a foreign national, likely intended that the instrument be alone admitted to probate in New York. The instrument also nominates an executor and a trustee to carry out that property's disposition” The Court held that, even though there is no Will, the instrument can stand alone because it is in accord with the decedent’s wishes.

The Case is Matter of Kim, 2014-516, NYLJ 1202672096081, at *1 (Surr., NY, Decided September 29, 2014).

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