A Last Will and Testament is a formal document that must meet certain requirements to be deemed valid. Estates Powers and Trusts Law 3-2.1 is the statute which governs will executions in New York. This list of requirements includes the proper execution of the Will. Will execution is the process by which the will is signed and made legal. To be validly executed in New York State, the Testator (the person making the will) needs to sign the end of the document, in the presence of at least two witnesses, who also sign the will and add their addresses.
The Testator must also make clear to the witnesses that the document being signed is a Will and they must request that the witnesses also sign the document. The Testator must execute the Will while they have the requisite mental capacity to understand what they are doing, and they must do so free from any fraud or duress.
The witnesses will generally have a conversation with the Testator before the Will is signed, watch them sign the will, and then sign at the bottom at their request. The witnesses are often unknown to the Testator before the execution process, but a simple conversation often allows the witnesses to observe the Testator’s mental capacity.
It is good practice to have the witnesses sign something called a “Self-Proving Affidavit” that states that the Testator had the capacity to sign the Will, signed the will without duress, and was over 18 at the time they did so. The affidavit can then be presented with the Will for probate at the Testator's death so that the witnesses do not have to come to court to testify about the execution procedure. This is a tool of convenience in the event the witnesses move or predecease the Testator and are unable to testify.
One of the simplest mistakes Testators make when executing their Will is the failure to choose disinterested witnesses. A disinterested witness is someone who does not stand to inherit from the will and therefore is not interested in whether the Will is valid and admitted to probate. An interested witness has an inherent conflict of interest because they will not inherit unless the Will is admitted to probate. For this reason, their testimony is problematic.
Estates Powers and Trusts Law 3-3.2(a)(1) requires that for the testimony of an interested witness to count, any bequests made to them will be void. In a similar vein, if you ask a distributee (someone who would inherit from you even if you had no Will) to witness your Will, they will lose the bequest you made to them under your will but they may still receive the portion of your estate you they would inherit if you had not made a Will.
To avoid the pitfalls of improper execution, most people choose to execute their Will in their lawyer’s office. Your estate planning attorney will be able to guide you through the proper execution procedure and will often provide witnesses from their office who are over eighteen years of age and have no connection to you or your family. If you have questions, call the offices Law Offices of Roman Aminov, P.C. at 347-766-2685.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice from Roman Aminov. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.