The proper execution or signing of a Last Will in New York requires that the formalities provided by statute be followed. The New York Probate Lawyer Blog has previously discussed these rules. The basic "formal requirements" for the signing and witnessing of a Will are set forth in Estates, Powers and Trusts Law section 3-2.1. Among other provisions, subsection (4) of the statute provides that "there shall be at least two attesting witnesses. . . ."
Thus, when a person dies and his or her Will is filed with the Surrogate's Court for probate, two of the attesting witnesses "must be produced before the Court and examined before a Will is admitted to probate. . . ." Surrogate's Court Procedure Act Section 1404(1).
In most uncontested matters an affidavit signed by the witnesses at the time of the Will execution will satisfy the requirements for examining the Will witnesses. This is the so-called self-proving Will. However, there are instances where a witness affidavit is not prepared at the Will signing or a Will contest requires actual live testimony of the witnesses.
Recently, Surrogate Edward W. McCarty III, of the Surrogate's Court, Nassau County, was presented with a Will that was 19 years old and the petitioner was unable to provide witness affidavits or testimony since one witness was deceased and the other witness could not be located. In Will of Jean Santoro, decided on May 3, 2011 and reported in The New York Law Journal on June 3, 2011, the Surrogate noted that the decedent's Will could not be admitted to probate as an "Ancient Document" since it was "less than 20 years old."
However, the Court became aware that the attorney who drafted Jean Santoro's Will, and who was one of the witnesses, had previously died and that his Will had previously been admitted to probate by the Court. Therefore, Surrogate McCarty ruled that since the deceased witness' signature was already on file with the Court, the petitioner could obtain an expert opinion as to the signature as a witness to the Will in question. The Surrogate also provided that an affidavit from a relative as to the signature of the decedent, Jean Santoro, would help prove the Will's genuiness.
The Santoro case illustrates that Courts generally favor finding the validity of a Will so as to carry out a person's estate plan and preferences for the distribution of his or her property. The Santoro case also shows the importance of up-dating a Will so that the persons involved with its execution are available in the event their testimony is required. Additionally, proper estate planning involves a periodic review of Will and trust provisions and beneficiaries and the selection of executors and trustees.
As noted, it is common for Courts to validate Wills to further a person's apparent testamentary desires. In a recent article by Arden Dale appearing in the Wealth Advisor on June 20, 2011 entitled California Court Gives 'Rogue' Wills More Validity, it was reported that a California court up-held a Will that was written by a decedent's friend while the decedent dictated its term. While courts may tend to overlook minor errors and approve "informal Wills", the article points out that "financial advisors still urge clients to get professional help if they want to change their estate plan."