Do I Always Need Two Witnesses When Writing My Will in New York?

When it comes to creating a valid will in New York State, many people 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 Although not a legal requirement, having a notary public acknowledge the witness signatures on a handwritten will can further bolster its legitimacy.

Interestingly, 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 to occur at a later date.

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 and a notary public involved to strengthen the will’s authenticity and minimize the risk of future legal challenges.

And listen, as I’ve told hundreds of our Last Will & Testament clients, even though I live and breathe this business and read POA and Wills case law as a hobby, my main business is acting as an Apostille expediter, not an attorney, and especially not an estate planning attorney. Please pay for a consultation with an estate planning attorney, not a general practitioner, to get the right legal information. And no, I don’t recommend.

If it were up to me, everyone would have properly drafted trusts.

Harry Otto
White Plains Apostille & Mobile Notary
(914)441-2444 Text or WhatsApp anytime