{Read in 4 Minutes} As a Trusts and Estates attorney, I regularly draft Wills for people all the time. It’s something that I really enjoy doing. One of the great things about writing Wills is that an attorney can tailor them to a client’s specific needs.
There are some formal rules for executing them, including:
- The Testator must sign and have testamentary capacity.
- The Will is not the product of undue influence, and
- The Testator asks at least two witnesses to the Will, who then affix their signatures to the Will.
Aside from some things that may not be the greatest idea to say in your Will, there aren’t a whole lot of rules.
EXCEPT THIS ONE. If you take nothing else away from reading my blog or researching things online in general, please, please, please, please, please, please, please pay attention to this rule.
To have a valid Will in New York state, the Testator needs to sign the Will and ask two people to serve as witnesses. These witnesses should be independent. This means that they are not named as beneficiaries in the Will.
What happens if a Testator writes a Will leaving money to a beneficiary and that beneficiary also serves as one of the two witnesses to the Will?
- If the beneficiary is also a spouse or close family member: The beneficiary will likely still get something, assuming they are a family member entitled to take according to the laws of intestacy, they will get the lesser of 1) what they are bequest in the Will, or 2) the intestate share they would get as a family member. This may have a real consequence. For example:
If my next of kin are my two siblings and I have a close relationship with one while I’m completely estranged from the other, think about how this plays out. If I write a Will disinheriting my brother and leaving everything to my sister, it’s going to be a problem if my sister is also a witness. She would not get everything. She would only get the 50% share, to which she would be entitled if I die without a Will.
- If the beneficiary is not also a spouse or close family member: The results could be catastrophic. Because they have no entitlement to inherit by virtue of their familial relationship, there is no “safety net” here. If they are one of two witnesses to the Will, they are completely disinherited. They get nothing. This is a very harsh rule when you have a situation where the Testator’s intent is very clear but because of a lack of witnesses, the person whom they intended to benefit winds up getting nothing.
Please note that this harsh rule applies to beneficiaries under the Will. There is an exception if the witness has no interest in the Will, except for being named as an Executor. However, the best practice would be to have two completely disinterested people serve as witnesses.
When most lawyers prepare Wills for their clients, they have them come in to sign and routinely have members of their staff serve as witnesses. This means that the client is assured that someone serving as a witness is a disinterested party.
For more information on this topic, please contact me.