What Constitutes a Valid Will in New York? Part 3: The Witnesses

By definition, a witness is one who provides evidence.  In the context of a Will attestation, witnesses are the persons who, by their presence, can provide a first-hand account of what they saw, heard or experienced during the Will execution ceremony.  By signing the document, they affirm that the maker of the Will (testator) has testamentary capacity and that the testator’s signature is authentic.

New York’s EPTL § 3-2.1 sets out the statutory requirements as to witnesses.   New York requires two attesting witnesses.  There are no statutory requirements regarding the qualifications of witnesses.  At the request of the testator, each witness must sign the Will and thereby affirm that the testator knows that he or she is making a Will, and that the testator has declared the document being signed as the testator’s last Will.  In New York, this is referred to as the publication requirement, and it is part of the Will execution ceremony.

The testator must sign the Will in the presence of the witnesses, but the witnesses need not sign in each others’ presence.  If the testator signs in the presence of only one witness, then the testator must acknowledge his or her signature to the other attesting witness.  In this case, the witnesses must sign within 30 days of each other.  In New York, there is a rebuttable presumption that the Will was signed by each witness within the 30-day window.  The presumption goes to due execution.  It is a rebuttable presumption because it can be challenged in a Wills contest and possibly overcome if proven otherwise.  The 30-day clock starts to run when the first witness signs the Will attesting the testator’s signature.

Each witness is asked to provide a current address, though failure to do so will not render the Will invalid.  The purpose for providing the address is that, should there be a Wills contest, the witness may be asked to provide testimony regarding the facts surrounding the Wills execution ceremony, such as the testamentary capacity of the testator or the authenticity of the testator’s signature.  The witnesses will need to be located in order to make an appearance in Surrogate Court.

Suppose that at the time of the Wills contest, one of the witnesses is dead or legally incompetent to testify.  What result?  In this case, the testimony of the other witness is sufficient.  Now suppose that neither witness is able to testify.  What result?  The Will proponent (the person presenting the Will in a probate proceeding before the Surrogate Court) must provide proof of the testator’s signature and of one witness.

Of course, problems associated with due execution may be overcome with a self-proving affidavit.  Unlike an attestation clause, which only acts to corroborate the witness’s testimony once called to testify or else to prove the witness’s signature, the self-proving affidavit acts as a substitute for the witness’s live testimony.  The affidavit has the same force and function as a deposition or interrogatory:  it is evidence of personal knowledge, and because the witness swears an oath, the affidavit is presumed to be truthful.   The affidavit will be notarized by a Notary Public (in many cases, the attorney overseeing the Wills execution ceremony is a notary public).  A self-proving affidavit should be prepared by an attorney in order to make sure that it conforms with the State statute.

In a self-proving affidavit, each witness swears an oath and signs an affidavit that recites all of the statements that they would make in court were they called to testify.  These statements refer to the testamentary capacity of the testator, and the signature requirements.  As a result, the affidavit is usually signed at the time of the execution of the Will.

What happens if one of the witnesses is also a beneficiary under the Will?  This is known as an interested witness.  New York’s interested witness statute is EPTL § 3-3.2 (a).  The signature of an interested witness does not make the Will invalid.  But it does make the bequest to the interested witness void.  This can have dramatic and unintended consequences.

Consider the case of the Matter of the Estate of Cynthia R. Wu (877 N.Y.S. 2d 886).  A provision of Wu’s Will provided for the following:  “All estate and inheritance taxes payable by reason of my death, in respect of all items included in the computation of such taxes, whether passing under this Will or otherwise, shall be paid by my Personal Representative or Trustee as of [sic] such taxes were my debts, without recovery if [sic] any part of such tax payments from anyone who receives any item included in such computation” (emphasis added).  Wu’s brother, Harry Wu, was the beneficiary of two life insurance policies totaling $3,314,215.   The problem was that Harry was also one of Cynthia Wu’s attesting witnesses at her Will execution ceremony, and therefore an interested witness. 

At issue was whether Harry Wu would be absolved from paying his ratable share of the estate taxes as provided for under the terms of the Will, or whether the fact that he was an interested witness made the provision in the Will void, making him subject to paying his share of the estate taxes.  Calling the rule about an interested witness “absolute,” the Surrogate Court, relying on a clear legislative intent to prevent fraud or undue influence, found against Harry Wu.  He was required to pay his ratable share of estate taxes from the proceeds of the life insurance policies.

Harry Wu’s bequest could have been saved by the supernumerary rule, that there were three witnesses and two were disinterested.  Wu attempted to claim this rule in his defense by claiming that the notary was the third witness.  And even though the notary knew that this was Cynthia Wu’s Will, she had not asked the notary to be a witness, a requirement under the statute.

Harry Wu’s bequest could have also been saved by an exception in the law.   Where the interested witness (in this case Harry) would have been a distributee had Cynthia died without a will (intestate), then the law allows the interested witness to take the bequest to the extent of the interested witness’s intestate share in the estate .  However, Cynthia was survived by her husband and two children, so Harry did not qualify as an intestate distributee (see my prior posting on the difference between an heir and a beneficiary).

The Wu case is a cautionary tale as to why you should have an attorney draft your Will instead of relying on boilerplate forms that are not tailored to your unique situation.  After all, no person’s estate and family situation is like any other, and your uniqueness should be reflected in the way that your Will is prepared:  a Will that is specifically drafted for you.  Your Will is, after all, one of the most important documents of your life and you should have the benefit of expert legal assistance in drafting it. 

The Surrogate Court in Wu was forceful in this regard:  “Any forfeiture resulting from unwitting use of a nontestamentary beneficiary as an attesting witness will most likely arise, as here, in the context of a tax nonapportionment clause covering assets passing outside of the will. It behooves any drafter using such clause to be fully informed of the testator’s nonprobate assets to avoid unintended consequences, some of which may have even greater potential for frustrating the testator’s intent.”

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

In the next blog post, I will examine what constitutes undue influence with respect to a Will in New York.   I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.

What Constitutes a Valid Will in New York? Part 2: The Signature

One of the most controverted aspects of the Brooke Astor will contest case was whether the signature that followed the last of three amendments (also known as a codicil) to the wealthy socialite’s 3 March 2004 Will was forged.   At stake were millions of dollars that would potentially be redirected to her son Anthony D. Marshall.  A forensic expert hired by Mrs. Astor’s court-appointed lawyer concluded that Astor, who was 101 years old at the time and suffering from Alzheimer’s, was too frail to have signed the codicil herself.

A signature on a Will attests to the testator’s intentions as expressed in the provisions of the Will.  A forged signature on a Will or on a codicil is of grave concern because it acts to circumvent or to counterman the specific intentions of the testator and replace them with the forger’s directives.  New York, therefore, imposes very tight restrictions on the signature at the end of a Will or a codicil.

In general, New York’s statute on the execution of Wills (EPTL § 3-2.1) does not allow a holographic Will, that is a Will handwritten and signed by the testator without the presence of attesting witnesses.  The purpose of the witness rule is to verify that the testator actually created the Will instrument, and that the testator had testamentary capacityThere are several emergency exceptions to the statute concerning holographic Will found in EPTL § 3-2.2.  These include armed forces personnel on active duty and mariners at sea.  However, these holographic Wills will expire one year following discharge from the armed forces.  The law presumes that within one year after discharge the individual has enough time to create and sign a properly witnessed Will.

A Will is usually signed during a Wills execution ceremony.  At that time, the testator signs the Will in the presence of the attesting witnesses.  The testator’s signature need not be legible.  New York even allows for an “X” as a signature.  If the testator is physically unable to sign without assistance, a guiding hand is allowed, so long as it is the testator’s intent that assistance be provided to sign the document.  If the testator is completely unable to sign the document, then another person may sign in the testator’s stead so long as it is done under his or her director and in the testator’s presence.   This is known as a proxy signature.  The proxy must also sign his or her name, and will not be included as one of the two necessary attesting witnesses.  In such circumstances, it is wise to videotape the Wills ceremony in anticipation of a potential Wills contest.

The testator’s signature must be placed at the end of the Will or the codicil.  Any words that follow the signature will be ignored.  However, if the words that follow the testator’s signature are material to the completion of the distribution plan, then the entire Will is invalid.  The person would die intestate, and his or her estate would be subject to New York’s default intestate statute (EPTL § 4-1.1).

New York requires two attesting witnesses to the testator’s signature.  The testator must sign the Will in the presence of each witness.  But each witness need not sign in the presence of the other.  The execution ceremony must be completed within 30 days of the time when the first witness signs, not when the testator signs.

In the case of a codicil (an amendment or supplement to the Will), it must also be executed with the same formalities as a Will.  For a codicil, however, New York does not require that the witnesses sign in each other’s presence or that they sign in the presence of the testator.

Though a self-proving affidavit is not required for a valid Will in New York, it is nonetheless a very good idea.  Your attorney can prepare this form for you as part of your Wills package.  The purpose of the self-proving affidavit is to certify the validity of the testator’s signature in the event of a Wills contest.  The testator and three witnesses must sign the affidavit together in the presence of a Notary Public (many attorneys are also notaries public).  The Notary will require that the testator and the witnesses swear an oath as to the authenticity of the signature, and may require photo identification of the testator and the witnesses.  The self-proving affidavit will then be affixed to your Will.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

In the next blog post, I will examine the requirements for the witnesses, and the role that the witnesses play in assuring the validity of a Will in New York.  I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.