Estate, Powers and Trusts, § 3-3.2: Competence of Attesting Witness Who is Beneficiary; Application

Under New York’s Estate, Powers, and Trusts law, one of the requirements for a will to be properly executed is that it that the signing of the will is witnessed by 2 disinterested people. This means that the witnesses cannot also be beneficiaries. If a beneficiary is also one of the two witnesses, the legacy left to that beneficiary who is also a witnessed will be void. In order to learn more about the requirements related to properly executing a will in New York, contact a New York will lawyer at the Law Offices of Stephen Bilkis & Associates to discuss your concerns.

Under New York law, a witness is not considered competent if he (or she) is also a beneficiary. In order for the beneficiary-witness to be eligible to receive a gift left in the will, there must be at least two other witnesses who are not also beneficiaries. It is important to understand that the beneficiary-witness does not have the choice to step aside from being a witness so that he can receive the gift left in the will. The gift will be void, and the beneficiary-witness will serve as an attesting witness unless there are two other attesting witnesses.

If a testamentary gift is void because of beneficiary-witness status, then the gift will be disposed of as follows:

• If the beneficiary-witness would have been entitled to inherit under the rules of intestacy, the beneficiary-witness would still be entitled to receive the amount of the estate that to which he would have been entitled to under intestacy, but no more.
• The testamentary gift that was to go to the beneficiary-witness will become part of the testator’s residuary estate.

Section 3-2.1 of the Estates, Powers and Trusts Law list the requirements for a will to be properly executed in New York as follows:

• The testator must sign the will. As a will lawyer in New York will explain, it is not acceptable for the testator to sign the will any place on the will. The law requires that the testator sign the will at the end. The law also allows that someone else sign the will for the testator, as long as the testator directed the person to do so and as long as the person signed the will in the presence of the testator. This may be necessary in instances where the testator suffers a physical impairment such that he or she is physically unable to sign the will, but has the mental capacity to execute a will.
• The testator must declare that the document is his will.
• The witnesses must also sign the will. At least two disinterested witnesses must sign the will at the testator’s request. The witnesses cannot also be beneficiaries. If a witness is also a beneficiary, the testamentary gift to the beneficiary will be void unless there are at least two other disinterested witnesses. The attesting witnesses must have signed the will within 30 days of each other.
• The testator must have signed the will in the presence of the witnesses. The testator must have signed the will or directed someone else to sign it in the presence of at least two witnesses. If the testator did not sign the will in the presence of the witnesses, the testator must have acknowledged to the witnesses that the signature on the will was his.

As a will attorney serving New York will explain, if you fail to properly execute your will, there is a chance that it will not be admitted to probate. Any interested party could challenge the will. If the judge agrees with the challenger, the will may be invalidated and your estate distributed according to the rules of intestate succession.

When Julie executed her will, she had 3 witnesses: Norm, Sally, and Steve. None of the witnesses were beneficiaries. A few years later, Julie decided to update he will. Over the years Sally had been very helpful to Julie as she aged. Julie decided to leave Sally a gift in her will of a lump sum of cash. Julie executed a codicil that was witnessed by Norm and Steve. When Julie passed away, there was an objection to the will based on the fact that Sally was a witness as well as a beneficiary. The objection is likely to fail because Sally was not a beneficiary to the will at the time it was executed. In addition, Norm and Steve were witnesses to both the signing of the will and the codicil. Under New York law, only 2 witnesses are necessary.

1. Who may make wills of, and exercise testamentary powers of: Estates, Powers and Trust, section 3-1.1
2. Who may receive testamentary dispositions of property: Estates, Powers and Trust, section 3-1.3

(a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment had been made, subject to the following:

(1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.

(2) Subject to subparagraph (1), any such disposition or appointment to an attesting witness is effective unless the will cannot be proved without the testimony of such witness, in which case the disposition or appointment is void.

(3) Any attesting witness whose disposition is void hereunder, who would be a distributee if the will were not established, is entitled to receive so much of his intestate share as does not exceed the value of the disposition made to him in the will, such share to be recovered as follows:

(A) In case the void disposition becomes part of the residuary disposition, from the residuary disposition only.

(B) In case the void disposition passes in intestacy, ratibly from the distributees who succeed to such interest.  For this purpose, the void disposition shall be distributed under 4-1.1 as though the attesting witness were not a distributee.

(b) The provisions of this section apply to witnesses to a nuncupative will authorized by 3-2.2.

Creating a will is more complicated than it might initially seem. New York has specific rules concerning practically every aspect of drafting a will and executing a will. Failure to follow those rules may result in part of your will being invalidated, and in your wishes not being fulfilled. In order to ensure that your will is consistent with New York probate law, contact an experienced New York will lawyer who will review your will and other estate documents and make sure that they follow the legal requirements. The attorneys at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in matters related to drafting wills and other estate documents, estate litigation, and estate administration. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.