When it comes to creating a valid will in New York State, many of our callers wonder if it is always necessary to have two witnesses present. The answer is not as straightforward as one might think, as there are certain exceptions to the witness requirement.
In this article, we will explore the legal intricacies surrounding the necessity of witnesses for wills in New York, with a particular focus on the validity of handwritten wills.
The General Rule: Two Witnesses Required For a typical typewritten or printed will in New York, the law requires the presence of at least two attesting witnesses (EPTL § 3-2.1(a)(4)). These witnesses must, within a thirty-day period, attest to the testator’s signature and, at the request of the testator, sign their names and affix their residence addresses at the end of the will (EPTL § 3-2.1(a)(4)). The testator must also declare to each of the attesting witnesses that the document is their will (EPTL § 3-2.1(a)(3)).
The Exception: Handwritten Wills However, there is an important exception to the witness requirement in New York State. According to EPTL § 3-2.2(a)(2), a handwritten will, also known as a holographic will, is valid without the need for attesting witnesses. For a holographic will to be considered valid, it must meet the following criteria:
- The entire will must be in the handwriting of the testator (EPTL § 3-2.2(a)(2)).
- The will must be signed by the testator at the end (EPTL § 3-2.2(a)(1)).
- The testator must have the mental capacity to make a will at the time it is written (EPTL § 3-1.1).
While witnesses are not legally required for a handwritten will, it is still advisable to have at least two individuals witness the signing of the document. This can provide additional evidence of the will’s authenticity and help prevent potential challenges to its validity (Matter of Teubert, 53 A.D.2d 869 (1976)).
The Option of Notarization for Witnesses Although not a legal requirement, if a testator opts to have two witnesses sign their handwritten will, a notary can acknowledge the witnesses’ signatures up to thirty days after they have signed, as long as the witnesses attest to having previously signed the will (EPTL § 3-2.1(a)(4)). This provides flexibility in the witnessing process and allows for the notarization of the witnesses’ signatures to occur at a later date. It is important to note that there is no provision in the EPTL for notarization of the testator’s signature on a will.
The “Importance of Proper Execution”, says Harry Otto, an apostille expediter and notary public at White Plains Apostille & Mobile Notary, often arrives at appointments for Last Will & Testaments in Westchester County and has to make judgment calls on what he’s willing to notarize and what he’s not. He makes it crystal clear: If he sees a will that is likely to get challenged in probate because the testator asked him to notarize their signature, and not those of the witnesses, he won’t do it because it will not create the self-proving aspect that the court would be looking for. If he sees mistakes in the document or in the request, he won’t offer legal advice, but he won’t notarize it and will ask the client to find another notary. It is crucial to ensure that a will is executed correctly to avoid potential issues during the probate process.
Harry Otto then goes on to say that although he lives and breathes this business and reads case law as a hobby, his main business is acting as an Apostille expediter, not an attorney, and especially not an estate planning attorney. He advises clients to pay for a consultation with an estate planning attorney, not a general practitioner, to get the right legal information. If it were up to him, everyone would have properly drafted trusts.
Conclusion In summary, while New York law generally requires two witnesses for a will to be valid, there is a notable exception for handwritten wills. A holographic will, entirely in the testator’s handwriting and signed by them, is considered valid without the need for attesting witnesses. However, it is still recommended to have witnesses involved to strengthen the will’s authenticity and minimize the risk of future legal challenges. If witnesses are used, a notary can acknowledge their signatures up to thirty days after they have signed. Proper execution of the will is essential to ensure its validity and to avoid complications during probate.
See our information regarding Trusts in New York as well.
Amanda Reese
White Plains Apostille & Mobile Notary
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