Can A Beneficiary Witness A Will In New York?

Yes, BUT any bequest to a beneficiary who witnessed a New York will is void.  However, if there are a sufficient number of witnesses to make the will otherwise valid, the bequest is not void.

Who Needs To Witness A Will in New York?

The requirements for witnesses for proper execution of a New York will are:

  • Two attesting witnesses
  • The testator must sign in the presence of each of the witnesses
  • The witnesses sign after the testator signs
  • The witnesses must include their addresses.

What Happens To A Bequest to A Beneficiary Witness?

If a beneficiary witnesses a New York will and there is not an extra disinterested witness to make the bequest to the beneficiary witness valid (or if the interested beneficiary is necessary to prove the will at probate), section 3-3.2 of the New York Estates, Powers & Trusts Law provides:

(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.

In sum, a beneficiary witness who would otherwise be a distributee can receive the lesser of the disposition under the will or intestate share.

Who Should Witness a Will?

Two disinterested, competent witnesses should serve as witnesses to a New York will.  Having a beneficiary serve as a witness to a New York will is counterproductive and makes probate more difficult than it needs to be.

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