Understanding Wills | This NYC Attorney Breaks Down The Elements Of Due Execution
The elements require that the testator’s signature be at the end of each will just before the attestation and witness attestation clause. Any material after the signature is considered invalid, but the will can still be probated without the material that falls underneath the signature (unless it is necessary in order to understand the will or carry out the testator’s general plan). Any material added later than the testator’s signature would be invalid, whether it precedes or follows in space of the signature. The burden of establishing when the additions or alterations were made should be on the person who benefits from them. If no such proof exists, then the court will ignore the alterations and grant probate to the will as originally written.
If a testator cannot sign his or her own name because of a physical infirmity, then another person can sign for him or her but cannot be counted as an attesting witness. So, at least two others would be needed in order to have a valid will execution. If the person signing for the decedent does not sign his or her name, the will is invalid. The courts are very strict about this requirement. A testator may also sign with just the making of a mark, such as an “X” so long as it signifies the signature on the will. As discussed earlier, there must be at least two attesting witnesses that sign at the end of the document. Attesting witnesses must know or understand that the testator has placed their signature on the document. A testator ordinarily signs in the attesting witness’ presence, but if he does not, he can acknowledge his signature to them before or after the attesting witnesses sign.
The testator must tell the witnesses that the document is his or her will. If he does not tell them directly, he must get this fact across to them. If they do not know it via the attestation, then the will is invalid. The attesting witnesses need not and generally do not know that there are sup positive provisions in the will. It is also required that the testator ask the attesting witnesses to sign his will. The attesting witnesses must sign within a 30 day period of when the will is executed by the decedent. The execution ceremony has no specific time limit, but it must be during a period of time that is satisfactory to the surrogate. The testator must ask the attesting witnesses to sign, which they will have 30 days to do. For example, if a testator signs his will on April 1st, then both witnesses must sign by April 30th.
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