Beneficiary as a Witness to a Will?
You finally take the time to think about how you want to leave your assets when you pass away, who you want to handle your estate, who you want to take care of your children, how you want to provide for your pets, and put it all in writing in the form of a Will. Then it comes time to sign the document. Before you sign the document you must secure not one, but two disinterested people to serve as the Witness to a Will.
In my previous post about properly executing a Will in New York, I advised you that you must sign your Will in the presence of two witnesses. While doing so, you need to express that the document is your Last Will and Testament, that you are signing of your own free Will, and that you want the witnesses to act as your witnesses. The process is not complicated, but it is specific and must be followed in order for the Will to have been properly executed.
What Does a Witness Do?
A Witness to a Will usually talks to you and observes you during the signing process. The Witness to a Will will watch you sign and then sign a statement that states that they saw you sign the Will and heard you declare that it was your Will, all within their presence and at your request. The Witness to a Will should also sign a “Self Proving Affidavit” that states that you were over the age of eighteen and had capacity to execute the Will. You will want to make sure that your witnesses observe that you have capacity to sign the Will so that if anyone were to attempt to challenge the Will later on, the witnesses can attest to your having capacity at the time of signing the Will.
Why a Beneficiary Should not be a Witness to a Will
You will need two witnesses to sign the Will who can attest that you had the requisite capacity to do and were not being coerced or unduly influenced. What if you are stuck and the only people you have to serve as a Witness to a Will are your beneficiaries? It is not a good idea.
A witness who is also a beneficiary has an inherent conflict of interest because your Will must be admitted to probate for the Witness to receive their bequest.
Moreover, a beneficiary who acts as a witness risks losing their inheritance. Pursuant to EPTL 3-3.2(a)(1), if the beneficiary is called to testify about the Will and its contents, then the only way that the testimony of the witness counts is if they lose their bequest. Put another way, the only way that the Witness can prove the validity of the will execution with their testimony is if their bequest is void. For example, In re King, N.Y.L.J., Jan. 1, 2000, at 32 (Sur. Ct. Nassau County), under the terms of his Will, the decedent bequeathed to his brother, Charles, his stock in a closely-held corporation. Charles was one of the two attesting witnesses, but was not a distributee. As such, the court found that the legacy was forfeited pursuant to EPTL 3-3.2(a)(1)(2).
Although your bequest may be considered void, if the witness to a Will is a distributee, that witness is still entitled to receive their intestate share (what they would receive in the absence of a Will). For example, let’s say you have no spouse and three children. However, you want to leave all of your estate equally to your friend and one of your three children.
You then ask your friend and the child who is receiving an inheritance under the Will to serve as your witnesses (of course after you read this article, you will pick different witnesses). If the friend and your child are called to testify, then the bequest to your friend will be completely void and the friend will receive nothing under your Will. The child, however, can be asked to testify and his inheritance will be reduced from what you left under the Will (50%) to what he is legally entitled to in the absence of a Will (one-third because he is one of your three surviving children and takes even if you do not have a Will).
In order to avoid any conflicts, or reduction or elimination in the dispositive shares, it is advisable to have two independent witnesses and not to have a beneficiary or anyone connected with the beneficiary act as the witness to a Will.
Who Can be a Witness?
In New York, a witness to a Will needs to be someone who is over the age of majority. In New York this is age 18. A witness to a Will should also be someone disinterested in your Estate. You can have a friend, neighbor, coworker, a relative not named in your Will. It should not be a beneficiary. You do not need to know this person from before. For example, if you are executing your Will in your lawyer’s office and they have members of the office act as the witnesses, that is ok, even if you haven’t met them prior. In fact it is better to have people in the lawyer’s office that you have never met before serve as Witnesses.
We can help you properly execute your Will and secure appropriate witnesses.
For more information, please contact Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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40 Wall Street
New York, NY 10005
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