It is common knowledge that in order for a New York will to be valid that there must be other people to witness you signing your will as well as putting down their own signatures on your will. Despite this knowledge though improper execution of the will is the most common reason that a will is found to be invalid.
Why Do I Need Witnesses At All?
Witnesses provide an important evidentiary function to the probate process. Witnesses to your signing can provide first-hand accounts of the execution of the will. If a will is ever contested, the witnesses can testify about the procedures that were followed when executing the will, the testamentary capacity of the testator as well as the mental capacity of the testator.
The New York Estates, Powers and Trusts Law Section 3-2.1 sets forth the requirements governing the proper execution of a New York will. In short:
- There must be at least two attesting witnesses
- The testator (the person making the will) must sign in the presence of each of the witnesses
- The attesting witnesses must affix their signature after the testator signs
- The attesting witnesses must also include their addresses
Not including the witnesses’ address does not mean that the will is invalid. However, it is a good idea to include that information on your will in case your witnesses are ever called to testify.
The attesting witnesses must also be disinterested in the matter. This means that your attesting witnesses cannot be anyone who is inheriting through your testamentary documents. You technically can have an interested witness sign your will but you will need to find a third witness who is disinterested to sign as well, making it a bit of a moot point. If you do not, any bequests that you have made to the interested witness may be discarded in order to uphold the validity of the will.
Common Witness Mistakes
Despite these rather straightforward requirements for the witnesses to a will signing and execution, many people cut corners for the sake of convenience. These include:
- Using a Notary Public as a witness
- Using an individual under the age of 18 as a witness
- The witness was not in the testator’s presence when the testator signed the will
- The witnesses did not know the document they were signing was a will
These may seem like silly reasons to invalidate a will but each one can and most likely will be used as a reason to invalidate an improperly executed will if ever challenged. Wills cannot be changed after the testator has passed. Therefore it is of the utmost importance that the documents are properly executed. A New York estate planning attorney is best consulted when it comes time to drafting and executing your last will and testament to avoid common will problems.
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