A New York Last Will and Testament is subject to many requirements provided by both statutes and Court decisions. These rules determine various aspects of a Will such as its validity and effect or interpretation.
The starting point regarding the proper form for a Will is New York Estates, Powers and Trusts Law Section 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements.” Among this statute’s numerous provisions is a requirement that “there shall be at least two attesting witnesses …” EPTL Sec. 3-2.1(a)(4). The statute also states that “The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses…” EPTL 3-2.1(a)(4). The statute also states that “The signature of the testator shall be affixed to the will in the presence of each of the attesting witnesses…” EPTL 3-2.1(a)(2).
While the EPTL mandates “at least two” witnesses, there is no prohibition against having more than the minimum two. In fact, it is a common practice to use three attesting witnesses to insure that at least two of the witnesses may be available if their testimony is needed years after the Will is signed in connection with a probate proceeding.
While having two witnesses sign the Last Will in the presence of the Testator appears to be a simple and straightforward requirement, there are may instances where this requirement has not occurred. For example, in In Re Postma, 895 NYS2d 778 (Surrogate’s Court, Westchester County 2009), the Court reviewed a Will which had been signed at the end by one witness and by a notary public. The Court denied the Will probate because it had only been signed by one attesting witness. The Court pointed out that EPTL 3-2.1 requires two attesting witnesses and that a person who signs a Will in the capacity of a Notary Public does not comply with the statutory requirement.
It is important to utilize the advise and direction of an attorney experienced with the requirements of the execution of a Will as well as the Probate procedure in the New York Surrogate’s Courts.
New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in Probate and Estate Settlement matters throughout the past 30 years. If you or someone you know is involved with or has questions about a New York Probate or Estate, please contact me at (212) 355-2575 or email: firstname.lastname@example.org, for an initial consultation.