In the state of New York, EPTL 3-2.1 governs the formal requirements for the execution and attestation of valid wills. The requirements do not have to be done in the precise order set forth below. However, all the requisite formalities must be observed “during a period of time in which, satisfactorily to the surrogate, the ceremony or ceremonies of execution and attestation continue.”
The following formalities are required for a valid formal (not nuncupative or holographic) will under New York law.
A New York Will Must Be In Writing And Signed At The End
New York’s EPTL 3-2.1 requires that:
- The will must be in writing; and,
- The will must be signed at the end by the testator OR in the name of the testator, by another person in his presence and by his direction.
Writing After The Testator’s Signature Is Of No Effect And Can Cause Problems
Any matter after the testator’s signature on the will can be problematic under New York law. EPTL 3-2.1(a)(1)(A)-(B) generally provide that:
- The presence of any matter following the testator’s signature, appearing on the will at the time the will is executed, shall not invalidate the matter preceding the signature as appeared on the will at the time of its execution, EXCEPT that the matter preceding the signature shall not be given effect, in the discretion of the surrogate, if it is so incomplete as not to be readily comprehensible without the aid of the matter which follows the signature OR if to give effect to the matter preceding the signature would subvert the testator’s general plan for the disposition and administration of his estate.
- No effect will be given to any matter, other than the attestation clause, following the signature of the testator, OR preceding such signature which was added after the execution of the will.
A Person Who Signs Testator’s Name To The Will Must Also Sign Own Name
If the testator is unable to sign the will, New York law provides that another person, in the testator’s presence and by his direction, may sign the testator’s name. However, any person who signs the testator’s name to the will, shall also sign his own name and affix his residence address to the will.
The person who signs the testator’s name will not count as one of the required attesting witnesses to the will.
A will that lacks the signature of the person signing the testator’s name shall not be valid under New York law, provided, however, that the failure of the person signing the testator’s name to affix his address shall not affect the validity of the will.
Witness Requirements For A New York Will
There must be at least two attesting witnesses to a New York will in order for the will to be valid. The witnesses shall, within one thirty day period, both attest the testator’s signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will.
There shall be a rebuttable presumption that the thirty day requirement of the preceding sentence has been fulfilled. The failure of a witness to affix his address shall not affect the validity of the will.
The testator shall, at some time during the ceremony or ceremonies of execution and attestation, declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will.
Who Can Make A Will Under New York Law?
Every person eighteen years of age or over, of sound mind and memory, may by will dispose of real and personal property and exercise a power to appoint such property. EPTL 3-1.1.
