The witnesses can do this while present with the testator if the notary is also present, or they can do so in front of a notary at a later time. The witnesses’ affidavit must be sworn in front of a notary public. Because that affidavit may be made at the time the will is signed, as a best practice nearly all well-drafted wills include such an affidavit (sometimes called a “self-proving affidavit”) to be signed by the witnesses when the will is signed or shortly thereafter. That testimony usually can be avoided in uncontested cases if the witnesses have signed an affidavit stating that the proper formalities were observed, that the testator had the requisite capacity at the time of making the will, and that the testator was not under any restraint in making the will. As part of the probate proceeding, the court may require testimony from the witnesses to the will execution. Merely presenting to the Surrogate’s Court an original will that appears to be signed by the testator and two witnesses is insufficient to establish that it was duly executed with the required formalities. New York also follows a “solemn” form of probate, which entails a court proceeding where interested parties are given an opportunity to contest the validity of the will before probate will be granted. The full probate process is beyond the scope of this column, but it is important to realize that the burden of establishing the validity of a will rests on the person seeking its probate (typically, the named executor under the will), and the court takes its protective role in supervising the probate process very seriously. The witnesses should be disinterested persons (e.g., not relatives) who do not receive anything under the will.įollowing the testator’s death, the local Surrogate’s Court is the body with authority to accept a will for probate, and typically the court will not do so unless it is satisfied with the genuineness of the will and the validity of its execution. Have the witnesses sign (and include their addresses on) the will at the testator’s request, attesting to the testator’s signature or acknowledgment in their presence.Declare to the witnesses at that time that the document is the testator’s will and.Do so in the presence of two witnesses, or later acknowledge to the witnesses in person that the original signature on the will belongs to the testator.Sign the written will or direct someone else who is present to do so on the testator’s behalf.Broadly speaking, the testator, who must be at least 18 and possess the requisite mental capacity, is required to: We provide this brief update to discuss some of the ways New Yorkers can meet the challenge of executing wills and trusts while observing stay-at-home and distancing guidelines, in some cases by employing new “remote” witnessing and notarization protocols.īy way of background, validly executing a will in New York traditionally requires the will, or any codicil to a will, to be in writing and for the testator to strictly observe certain legal formalities. Since our last column, however, the devastating COVID-19 pandemic has brought greater focus to family decisions and planning and raised practical questions about how one can validly complete an estate plan or revise existing estate planning documents. Earlier this spring, we wrote about the consequences of dying without a will. This article by Brian Sweet of Patterson Belknap Webb & Tyler addresses some of the ways New Yorkers can meet the challenge of executing wills and trusts while observing stay-at-home and distancing guidelines, in some cases by employing new “remote” witnessing and notarization protocols. Information for Current Donors, Professional Advisors, Nonprofits.
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