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Katya Sverdlov Blog

Thursday, February 15, 2018

Spell the name of the Witness to Your Will

In New York, every Will must be witnessed by at least two witnesses. When the Will gets probated in Surrogate Court, the names of the Witnesses must be listed on the Probate Petition. Therefore, the Executor of the Will has a real problem when the signatures of the Witnesses are illegible and no other information about them is available.

When the Witnesses were the Testator’s friends, it may be possible to figure out their names based on familiarity with the Testator. Even then, there are usually other problems that arise when the Testator executed his Will without a lawyer. For example, the Witnesses needed to execute a self-proving affidavit in front of a notary, they needed to hear that the Testator announced that what he is signing is his own Will, and everyone needed to remain in the same room together while signing the document.

Most often, however, the Witnesses were not Testator’s friends. It becomes a problem when the Will is contested by someone who was disinherited. In that case, the disinherited relative has a right to call the Witnesses to testify about the Testator’s mental capacity, and the formalities of the execution of the Will. If no Witnesses can be identified, the validity of the Will is going to be in doubt.

The best practice is to have your Witnesses print their names neatly below their signature lines. In addition, they should include their residential addresses and / or phone numbers where they can be found in the event a dispute about the Will arises.

Remember, having a Will reflect your wishes accurately is only one half of having a valid Will. You must have proper execution of the document in order for your wishes to be fulfilled. Making sure that your future Executor will be able to find the Witnesses to your Will is extremely important to the validity of the document.


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