When a will has a relative or a beneficiary as a witness, is the will valid? Kind of. The will is valid for everyone else, but the beneficiary-witness does not benefit from any increase in his or her share over what the beneficiary-witness would have gotten if not for the will. In other words, the will is valid but the bequest to the beneficiary witness is ignored. Instead, the beneficiary-witness gets what they would have gotten if the will was not made (this is called the “instestate,” or no-will, share). Except if the will leaves the beneficiary-witness less than they would have gotten without the will. So the beneficiary-witness gets the worst of both worlds.
New York Consolidated Laws, Estates, Powers and Trusts Law – EPT § 3-3.2 Competence of attesting witness who is beneficiary; application to nuncupative will is the section of New York law dealing with this issue. It states that
(a) An attesting witness to a will to whom a beneficial disposition or appointment of property is made is a competent witness and compellable to testify respecting the execution of such will as if no such disposition or appointment had been made, subject to the following:
(1) Any such disposition or appointment made to an attesting witness is void unless there are, at the time of execution and attestation, at least two other attesting witnesses to the will who receive no beneficial disposition or appointment thereunder.
(2) Subject to subparagraph (1), any such disposition or appointment to an attesting witness is effective unless the will cannot be proved without the testimony of such witness, in which case the disposition or appointment is void.
(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 1 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.
A person serving as a witness to a New York should not be someone who benefits from that will in any way, even indirectly. The law requires that a will must be signed by two or more competent witnesses over the age of 18.
There are some people that should not be used as witnesses. When a beneficiary is used as a witness, it creates a conflict of interest situation and voids the bequest. For this reason, it is the worst idea to use a beneficiary as a witness to a will because that heir’s inheritance would be invalid, and the heir would then inherit nothing.
At the will execution ceremony, the witness must attest that the testator has declared the document to be the testator’s last will. There are other specific qualification requirements to be a witness under New York Probate laws other than being over 18 years of age and competent. The testator must sign in the presence of the witnesses. It is also recommended that the witnesses sign in the presence of each other as well, although New York law does not require that they do. However, the second witness must sign within 30 days after the first witness has signed in order for the will to be valid. Should a witness be called to testify in a will contest matter after a decedent’s death, the Will witness must be able to attest that the testator was mentally competent at the time of the execution of the will.
Please do not use this post if you are preparing your will yourself, as there are subtle issues involved that could make a difference between the will being valid and invalid. In order to make sure your will is valid, it is recommended that an experienced New York estate planning attorney prepare the will for you, and conduct and attend the signing ceremony to make sure that the will is properly signed and attested to under New York law. The attorney can explain the various provisions of the will to you and go over the New York probate process with you in case you have any concerns or questions. Having a valid will assures that your wishes will be carried out after your death and that your heirs will inherit your assets in the manner you have chosen.
If you wish to make a will with the assistance of a New York estate attorney, or you are dealing with a will where a relative or beneficiary is a witness and it may be invalid, call the Law Offices of Albert Goodwin at (212) 233-1233.