A Procedural Policy Based on New York Statutes and Probate Decisions
Important Context
This article explains our internal service policy. It is provided for informational purposes only and reflects how we manage professional risk as mobile notaries.
It is not legal advice.
Many families contact mobile notaries specifically because hiring an attorney is not financially realistic. We fully understand that reality and approach every appointment with respect and empathy. However, New York law draws a firm line between notarial services and legal guidance, and we do not interpret documents or advise clients on how a will should be executed.
Our role is limited to performing authorized notarial acts — and occasionally declining requests that may unnecessarily involve us in later court proceedings.
What New York Law Actually Requires for a Valid Will
New York’s governing execution statute is:
EPTL § 3-2.1 — Execution and Attestation of Wills
A valid will must:
- Be in writing
- Be signed by the testator
- Be witnessed by at least two attesting witnesses
The statute does not require the testator’s signature to be notarized.
By contrast, notarization is specifically contemplated for a different purpose:
SCPA § 1406 — Self-Proving Affidavits
This allows witnesses — not the testator — to swear before a notary so that probate can proceed without needing their live testimony.
Statutory signal:
New York relies on witnesses as the primary evidentiary safeguard.
Why This Matters From a Notary’s Perspective
When a notarial certificate appears on a will, that notary becomes part of the execution record.
If the will is ever contested, courts examine everyone involved in the signing ceremony.
This is not speculation — it is how probate litigation routinely functions.
Our decision is therefore operational rather than advisory:
we avoid placing our notaries into situations that increase the likelihood of being called into court years later.
New York Courts Enforce Execution Formalities Strictly
Matter of McDonough
201 App Div 203 (3d Dept 1922)
The court emphasized that will formalities exist to prevent fraud and must be followed carefully.
A Notary Is Not a Witness — And Courts Treat the Roles Differently
Matter of Postma
895 NYS2d 778 (Sur Ct, Westchester County 2009)
Probate was denied where statutory witnessing requirements were not satisfied. A signature appearing in a notarial capacity could not substitute for an attesting witness.
Key takeaway:
Capacity matters. Courts distinguish sharply between a notary and a witness.
We do not want our presence to create uncertainty about who performed which role.
Extra Notarization Usually Does NOT Invalidate a Will
New York recognizes that material added after the testator’s signature may simply be disregarded rather than void the instrument.
EPTL § 3-2.1(a)(1)(B)
Matter of Lewandowski
60 Misc 2d 1005 (Sur Ct 1969)
The court ignored language placed after the signature without invalidating the will.
Translation:
Notarizing the testator typically does not destroy an otherwise valid will.
But validity is not the only concern.
The Real Issue Is Probate Scrutiny
Matter of Collins
60 NY2d 466 (1983)
Courts evaluate the surrounding circumstances to determine whether due execution occurred.
When an execution ceremony contains irregular or unnecessary elements, judicial inquiry naturally broadens.
Questions may include:
- Why was a notary involved?
- Who directed the ceremony?
- Did participants understand their roles?
Even when everything was done correctly, these questions can require testimony to answer.
Improper Notarization Can Also Affect Affidavits
Matter of Wilkinson
2010 NY Slip Op 33075(U) (Sur Ct, Nassau County)
A self-proving affidavit was declared a nullity because the notarization was improperly performed. The will was eventually admitted, but only after additional proof.
Additional proof often means additional appearances.
Why Mobile Notaries Pay Close Attention to This Risk
If a will is later examined in Surrogate’s Court, attorneys frequently seek testimony from everyone whose name appears on the document.
That can include:
- attesting witnesses
- drafting attorneys
- supervising professionals
- and notaries
Even when no error occurred.
For mobile notaries — whose role is intended to be limited and ministerial — this represents avoidable exposure.
What This Policy Does — And Does Not — Mean
It does NOT mean:
- the will would be invalid
- the signer is doing anything improper
- notarizing the testator is prohibited
Instead, it means we choose not to perform a non-required act that may expand our involvement in a future probate matter.
This is a professional boundary, not a legal judgment.
Our Service Approach
To keep the signing ceremony as clear and predictable as possible, we typically limit our role to acts specifically contemplated by New York procedure — most commonly notarizing self-proving witness affidavits.
When a request is made to notarize the testator directly on the will, we may respectfully decline.
Our reasoning is straightforward:
- The statute does not require it
- Courts rely on witnesses
- Additional participants can broaden inquiry
- We aim to reduce complications for families
Clarity at execution often translates into smoother probate later.
Respect for Families Navigating Difficult Circumstances
We recognize that many people arranging will signings are doing so during stressful periods and without the benefit of ongoing legal counsel.
Our decision not to notarize the testator is not meant to create obstacles — it is intended to avoid adding procedural complexity that could surface years later.
We remain committed to providing professional, prompt, and respectful notarial services within the scope of our authority.
Summary
New York law places the evidentiary weight of a will on attesting witnesses, not notaries.
Courts enforce execution formalities carefully, and when additional actors appear in the signing record, they can become part of later judicial review.
Although notarizing a testator generally does not invalidate a will, it also provides no statutory benefit while potentially increasing the likelihood that a notary will be drawn into probate proceedings.
For that reason, we maintain a policy of limiting our services to notarial acts that are clearly supported by New York procedure.
This article reflects our operational choice as mobile notaries and is provided for informational purposes only — not as legal advice.










