{Read in 6 Minutes} As a Trusts and Estates attorney, I draft Wills for clients all of the time. During my career, every single Will that I have drafted has included a self-proving affidavit. This topic comes up often, particularly when a nominated Executor offers the Will for probate at the Surrogate’s Court, so I thought I would spend some time explaining it and talking about how and when it might come up.
New York law requires that people sign Wills with a certain formality. Specifically, our statute requires that clients (1) sign the Will at the end of the document, (2) declare the documents to be a last Will and Testament, and (3) request two witnesses to observe this occurrence who will then sign their names on the Will as well. Whenever the Surrogate’s Court considers an application to probate a Will, the Court must make a finding that the deceased signed the Will correctly.
There are two ways that a party can submit evidence to the Court upon the initial filing. The first is by having the witnesses sign an affidavit after the deceased dies concerning what happened when the deceased signed the Will. The second is to present a self-proving affidavit that the witnesses signed contemporaneously with signing the Will.
What does the self-proving affidavit say? At a minimum, it should:
•It will confirm the date and location where the deceased signed their Will.
•It will state that the witnesses personally observed the deceased sign their name on the Will in their presence, and then they, as witnesses, sign their names in the presence of the person signing the Will.
•It will state that the deceased could read and write the English language.
•It will state that the deceased could hear and see sufficiently well to participate in the signing ceremony.
•It will also provide the witness’s opinion that the deceased was of sound mind in that they did not observe anything that would lead them to conclude otherwise.
While some self-proving affidavits may differ slightly (either from state to state or from attorney to attorney), in New York, almost every single self-proving affidavit will, at a minimum, contain these elements.
The witnesses would typically sign the self-proving affidavit immediately after signing the Will as witnesses and a notary public would then notarize their signatures. Very often this document is either kept with the Will, stapled to it, or made part of it so that it doesn’t get lost between the date of the Will and the date of the deceased’s death. After the deceased dies, the nominated Executor then presents the self-proving affidavit to the Surrogate’s Court along with the original Will. This creates a preliminary showing of sufficient evidence for the Court to admit it to probate.
What happens when there is a Will that doesn’t have a self-proving affidavit? Well, this happens from time to time. For example, in New York, most attorneys only started attaching self-proving affidavits to their Wills in the early 1990s. Wills that their clients executed beforehand tend not to have these affidavits.
When people DIY their Wills, sometimes they are able to locate witnesses but they are not able to secure a notary public to sign the affidavit. Sometimes, the deceased will have the witnesses contemporaneously sign the self-proving affidavit, but it gets lost between the time that the deceased wrote the Will and their death. As you can see, there can be many other reasons it’s not present when the Surrogate’s Court is entertaining a probate proceeding.
The Court allows a Petitioner to rectify this by having the witnesses sign affidavits after the death of the deceased about what happened on the date the deceased signed the Will. Sometimes this is impractical; here are some common issues that might arise:
1. Let’s say that a New Yorker signed a Will in 2005 and she died last month. When her Executor offers the Will for probate, the Executor is going to have to try to find these witnesses to sign the affidavits. Maybe the Executor knows who they are, or maybe they do not. Maybe their signatures are so illegible that it’s impossible to identify who they are.
2. It’s possible that she can identify who they are, but not where they are in order to track them down and find them. It’s also possible that the witnesses themselves may now be deceased or be suffering from diminished capacity, which means that the Executor needs to ask the Court to dispense with their testimonies (a more complicated process than plain vanilla probate, which could lead to some delays).
3. Finally, you’re also dealing with the reality that people do not have perfect memories. Try to think of what you were doing on this date 20 years ago. Can you remember it? If you can, I’m impressed. Most people can remember certain events, but not with the same specificity that they would otherwise possess if they had contemporaneously signed the affidavit.
As you can see, there are some real practical problems here. Best practice is to always sign a self-proving Affidavit when executing a Will.
I hope this article was helpful to explain a little bit about what a self-proving affidavit is and will help people who are either interested in signing Wills or Executors who are in the process of offering a Will for probate.
For more information on this topic, please contact me.