When you execute your Will you MUST have it witnessed by at least two competent adults who are not beneficiaries in the Will. When you die New York’s Surrogate’s Courts require the names of the witnesses to be listed in the Probate Petition. And so it is nothing short of stupefying to me how many Wills have witness signatures that are completely illegible.
This is somewhat understandable if you execute your own Will, since non-attorneys are not in the business of drafting Wills. The signers of illegible signatures are also more easily identified in the event it was the Testator’s friends or neighbors who signed (and thus the identities of the witnesses are more easily deduced). But many attorneys’ witnesses also typically just scribble their names in an illegible blot. In addition, an inexperienced attorney often does not ask his witnesses to print their names or include their home addresses where they may be found in the future. This can become problematic, because the attorney usually has short-term staff members or even office suitemates who may be transients in the practitioner’s life: Witnesses may more or less be “lost to time” by the time you die and their identity becomes necessary to ascertain.
This inability to identify witnesses in the future may prove fatal to the validity of a Will if a witness has a common name and cannot be found when the Will is contested by a disgruntled family member, or when the witness does not remember the execution ceremony. Remember: your next of kin are the primary parties who have a right to dispute the Will, especially when they are disinherited. The first thing they will do in a Will contest is contact the witnesses to the execution of the Will. Yet, if no witnesses can be found, there is no one to testify to the process of the Will signing and the Testator’s required mental capacity to execute the Will, and the validity of the document is going to be suspect.
Have your witnesses NEATLY print their names (with their signatures), and include their current residential address or some other address they can be found if a future Will dispute occurs. Also, you must have the Will’s self-proving affidavit signed at the time of the execution, or else the witnesses will have to sign it when the Will is delivered to the court upon your passing. This may happen years in the future, at which point the witnesses may be hard to find or they may not remember the signing ceremony. Make sure that witnesses read the self-proving affidavit before signing it (Wills have been invalidated due to this oversight).
Having a good written document is only the first half of having a valid Will: Proper execution of the document is essential for validating the document. Knowing the identities of your Will’s witnesses will both save you time and money, and better ensure your post-mortem desires are fulfilled.
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