New York Will Requirements

What are the formalities of making a Will in New York?

The New York Will requirements are set out in the consolidated statute: estates, powers and trusts, article 3 substantive law of Wills.

This law states that every person eighteen (18) years or older may make a Will as long as they are of sound mind and memory. § 3-1.1

Formal Requirements

A New York Will must be:

  • In writing;
  • Signed at the end by the testator (person making the Will);
  • In the presence of two or more attesting witnesses. § 3-2.1

Do not try to add any matter (writing) after the testator’s formal signature. Generally, the law doesn’t give any effect to such writing (other than the formal attestation clause). Even though it’s generally disregarded, any text or characters after the signature can cause complex legal problems.

Witnessing Requirements

The Will must be witnessed in accordance with New York Will requirements, which state:

  • the testator must advise each witness that the document is his/her Will (witnesses are not required to know the contents);
  • the witnesses must observe the testator signing the Will and observe each other sign;
  • each witness must sign their name and affix their residential address at the end of the Will. § 3-2.1

The witnesses are required to attest and sign the Will within 30 days of observing the testator’s signature to the Will. However, it is most prudent to have all parties sign at the same time.

Can my spouse witness the Will?

No. Any gift or appointment in favor of a witness becomes void, unless there are two other disinterested witnesses. If your spouse did witness your Will (without two other independent witnesses), then he/she would only receive the amount specified under the laws of intestacy (as though you had no Will), capped to the amount stated in your Will. § 3-3.2

Never use a beneficiary under a New York Will as a witness. Always use two independent persons. This also applies to nuncupative Wills.

Self-proving your New York Will

In order to provide added authentication to your New York Last Will and Testament, you may ask your witnesses to sign an affidavit. The self-prove affidavits can be produced in court with the Will in order to facilitate the probate process. This is beneficial for proving the Will complies with New York Will requirements, in case any of the witnesses die or cannot be found after your death.

The affidavit needs to be signed before any officer authorized to administer oaths. It must state the necessary facts to establish the genuineness of the Will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a Will and not under any restraint. § 1406

Attorneys highly recommend having your Will self proved.

What if the testator is unable to sign?

The formal requirements enable any person to sign a New York Will in the testator’s name if done so in the testator’s presence and by his/her direction. The person signing on behalf of the testator must sign his/her own name and residential address.  The witnesses have to observe and attest the testator’s acknowledgment of such signature. § 3-2.1

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