Numerous problems can arise if a New York Last Will and Testament is not properly executed. This is one of the reasons why it is so important to have an experienced estate planning attorney draft and oversee the signing of a Will.
If one is only interested in having the attorney prepare a Will, the relative minor cost pales in comparison to the issues that can arise if a will is not properly executed, and is ultimately declared void or invalid.
When a Will is declared invalid, New York’s laws of intestacy are controlling, and statute sets forth who will receive any portion of your estate that falls under the purview of the Surrogate’s Court.
When there is no valid Will, your statutory distributees or “next of kin” will receive their proportionate share of your estate. Quite often, people have Wills drafted because they don’t want to necessarily follow a traditional testamentary scheme, and desire to leave as beneficiaries more distant relatives, close friends, or a charity.
The Courts confer a presumption of validity when a Will execution (signing) is overseen by an attorney. The attorney will ensure that two (2) disinterested witnesses will see the Testator sign the Will in addition to seeing each of the witnesses sign the attestation clause of the Will. The attestation clause certifies under oath that the witnesses saw the Testator sign the Will in their presence, that the Testator understood English, that they have the testamentary (mental) capacity to sign a legal document, and further that they signed the will freely, voluntarily, without undue influence or being induced to signing the Will by fraud.
To make matters easier, an affidavit of attesting witnesses should be attached to the Last Will once it is complete so as to not have to locate the attesting witnesses to sign an affidavit after the death of the Testator, which can often be years down the road from the actual Will signing.