When a Last Will and Testament is submitted to the Surrogate’s Court, the document is always reviewed for due execution. The requirements needed to properly sign a Will are located in Estates, Powers and Trusts Law section 3-2.1 entitled “Execution and attestation of wills; formal requirements”.
The New York Probate Lawyer Blog has published many articles regarding Will execution. The statute is quite explicit and requires that there be a writing and that there be two witnesses. Of course, there tends to be many variations that arise when a Will is offered for probate. Sometimes the witnesses to the Will who may be called upon to testify cannot remember the Will signing ceremony. In other instances, a witness may have died or it may not be possible to locate the witness.
Typically, when a Will is signed, the witnesses sign an affidavit called a self-proving affidavit that sets forth all of the elements regarding proper execution. However, when an interested party seeks discovery under Surrogate’s Court Procedure Act 1404 entitled “Witnesses to be examined; proof required”, or there is a Will Contest, the witnesses need to provide in person testimony.
When there is a Contested Will, the Objections that are filed usually include lack of due execution, undue influence and lack of testamentary capacity. In cases where an attorney drafted a Will and supervised the signing ceremony, the estate law in New York provides a presumption of proper execution. Thus, having an attorney oversee the signing of a Will provides a certain security that the document should be admitted to probate.
However, even when a Will execution is not attorney supervised, the Court can find that it is valid for probate. Such was the situation in Estate of Nelson, which was a State Island case decided by Richmond County Surrogate Matthew Titone on February 11, 2019. In Nelson, even though an attorney was not present when the Will was signed, the Court found that the witnesses’ testimony, the presence of an attestation clause and the surrounding circumstances were sufficient to provide validity to the document.
When an estate attorney supervises the execution of a Will he can provide that the testator signs in the presence of the witnesses and that the witnesses sign together thereafter and that all formal requirements such as publication are satisfied.
I have represented clients in many probate cases including Will Contests. I have also supervised the execution of numerous Last Wills. If you have any questions or issues regarding Probate or a Contested Will or the Execution of a Will, call me now for a free review. We offer reasonable and flexible fee arrangements and appear in all Surrogate’s Courts in New York City and surrounding Counties.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Brooklyn and Queens. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.