With the advent of the internet and the age of information, people may believe that by conducting a simple Google (or other search engine) search, they can effectively and properly produce an estate planning that satisfies their needs and the needs of their family. In most cases, the risks of such estate planning without the absence of effective counsel can surely outweigh the rewards.
One of the most glaring errors I see in my experience with estate administration, and in some instances, contested estate litigation, is the failure to provide a properly executed Last Will and Testament. Often, I have been retained to either defend or possibly object to the admission of a Will when a question has been raised as to due and proper execution of said will. New York estate law clearly requires certain formalities be followed in order to have a validly executed Last Will and Testament. From a written standpoint, a Will requires certain language included in an attestation clause which essentially states that the Testator (person executing the will). This clause must state that the document subscribed, published and declared by the Testator is the Last Will and that the witnesses (a topic we will address below) saw the testator sign in their presence, and vice versa. Furthermore, a will should include an affidavit of attesting witness which states that the two (2) witnesses saw the witness sign the will in their presence, and that the witnesses signed the same document in each other’s presence. It is also crucial in both the attestation clause and the affidavit of attesting witness to state that the testator understood the English language, understood the document they were signing, did not suffer from sight or hearing issue that would impair their ability to do as such, that they had the requisite mental capacity (testamentary capacity), and were not unduly influenced to sign the document. To have this requirement no be overseen by an estate attorney can cause issues down the road when a will is sought to be offered to probate. It is important to note that case law states that when an attorney oversees the will execution and signing ceremony that there is a presumption of a validly executed will by the Testator.
The preceding paragraph referenced the presence of witnesses to observe the testator signing a will. This issue can certainly appear in a contested probate proceeding if the proper protocols were not followed. New York EPTL (Estate Powers and Trusts Law) requires the presence of two (2) disinterested attesting witnesses to oversee the signing of the will. Clearly, that would eliminate certain persons who should not be an attesting witness to the will signing. For one, any person who would derive a benefit from the will should never witness the signing of the will. Close family members, such as a spouse, child, or sibling, who would derive a benefit under the will, should not witness the will signing. Even if a family member is not specifically referenced in a will, it is never a prudent decision to have a family member act as a witness.
The best guide for witnesses should include neighbors, or if the will is executed in an attorney’s office, then staff members of that attorney or other lawyers in the same suite who are not interested as a beneficiary under the will. It is important to note that due to the COVID-19 pandemic, the current Executive Order by Governor Andrew Cuomo (as of the date of this writing) permits for remote witnessing and notarization assuming proper protocols and procedure are followed. An even more important reason to not rely on your own research to conduct your estate planning without the assistance of knowledgeable counsel.
If you need an experienced Long Island estate attorney, please contact us at the Law Offices of Michael W. Alpert at (516) 280-7288 or e-mail: firstname.lastname@example.org