Legal Question in Wills and Trusts in New York

Re: witness to a will

In NY, you only need two witnesses to a will, but most attorneys prepare them with 3 witnesses just in case one witness cannot be located thereafter or is deemed insufficient. There is no immediate need to replace your witness if you still have 2 other witnesses. Also, the veracity of witnesses would likely come up if your will is ever challenged in probate.

Feel free to contact me with any further questions you may have.

Kind regards,

Peter Moulinos

Re: witness to a will

Assuming you have only 2 witnesses and no self proving affidavit was signed by them the answer is yes.

Re: witness to a will

In New York, it is possible to establish the validty of a Will where one of two witnesses has passed away. It is likely that the court will require the living witness to testify as to the facts and circumstances of the Will execution. Furthermore, the court will also accept testimony from the attorney (assming there was one) who was present when the Will was executed.

I agree with my colleague in reminding you that you may wish to consider preparing a new Will since the legal fee for such service is generally reasonable.

If you should require my assistance, please feel free to contact me.

Re: witness to a will

The simple answer depends upon several factors. (1) If you have a vaild self-proving Will under NY law, as in most states that have this, it is immaterial, as the concept of self-proving is to allow the Will to go through probate without the witnesses being present when the Will is submitted for probate. (2) Witnesses may only be needed if the Will is contested on the grounds of competency of the maker or other grounds, or questions on approprietness of the signing, and they might need to be deposed on what took place when it was signed. (3) If you moved and the self-proving language in the original did not meet the requirements of the state in which the Will is to be probated, a witness would be needed. I have had some cases where all witnesses had died or moved and could not be located. In several, they allowed a person who was present, but not a witness, to sign forms that they saw all legal requirements performed, and the Will could be probated. Finally, when in doubt, redo the Will with new witnesses and use people you know so they could be reached if needed later on.