New York Will Witnesses May Not Receive a Beneficial Disposition in the Will

The execution or signing of a New York Last Will is subject to very strict statutory requirements. While the Will signing ceremony may seem somewhat formal and old-fashioned the requirements of the statutes must be adhered to for the Will to be admitted to probate or validated.

As previously reviewed in earlier posts in the New York Probate Lawyer Blog, Estates, Powers and Trusts Law (EPTL) Section 3-2.1 provides the “formal requirements” for the “Execution and attestation of wills”. A summary of the requirements includes the following:

(i) The Will must be signed at the end.
(ii) No effect is given to any matter which is after the signature or added after the
Will is executed.
(iii) The Will should be signed in the presence of the attesting witnesses.
(iv) The testator should declare to the witnesses that the paper is his Will.
(v) There should be at least two (2) witnesses to the Will.

Sometimes obtaining the mandatory two (2) witnesses is not an easy task. If the Will is signed in an attorney’s office it is typically easy for the supervising attorney to obtain independent attorneys or office staff to act as witnesses. However, sometimes due to inconvenience or a testator’s inability to travel, the Will execution ceremony is performed in a residence or other location. In such situations, controlling the execution ceremony so that it complies with the statutory requirements is more difficult.

Attention is called also to EPTL Section 3-3.2 entitled “Competence of attesting witness who is beneficiary; application to nuncupative Will.” Essentially, this statute provides, in part, that where an attesting witness receives a benefit under the Will, such disposition is to be deemed void unless there are at least two other witnesses who do not receive a beneficial disposition. Thus, if the benefiting witness’s testimony is needed to validate the Will, the disposition is voided and lost.

A recent case decided by Surrogate John M. Czygier (Suffolk County Surrogate’s Court) on December 14, 2012 and reported in the NYLJ on December 31, 2012 cited as “Probate Proceeding 2012-337”, is an example of a problem presented by a witness having a beneficial interest in a Will. In this case, the Will had a provision whereby a bequest of $100,000 was made to the “Peconic Landing Employees Appreciation Fund.” All three attesting witnesses were employees of Peconic Landing and the Court found that they would benefit from the bequest to the Fund. Therefore, the Surrogate determined that the witnesses received a “beneficial disposition’ and voided the $100,000 bequest to the Fund.

As can be seen from the above decision it is important that the preparation and execution of a Last Will be done with an eye towards potential problems in probating the Will. New York Estates Lawyers typically are familiar with the statutory requirements for Will executions and probate and work closely with their clients to achieve their estate planning goals.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate or beneficiary designation, please contact me at (212) 355-2575 or email:, for an initial consultation.

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