What Constitutes a Valid Will in New York? Part 2: The Signature

One of the most controverted aspects of the Brooke Astor will contest case was whether the signature that followed the last of three amendments (also known as a codicil) to the wealthy socialite's 3 March 2004 Will was forged.   At stake were millions of dollars that would potentially be redirected to her son Anthony D. Marshall.  A forensic expert hired by Mrs. Astor's court-appointed lawyer concluded that Astor, who was 101 years old at the time and suffering from Alzheimer's, was too frail to have signed the codicil herself.

A signature on a Will attests to the testator's intentions as expressed in the provisions of the Will.  A forged signature on a Will or on a codicil is of grave concern because it acts to circumvent or to counterman the specific intentions of the testator and replace them with the forger's directives.  New York, therefore, imposes very tight restrictions on the signature at the end of a Will or a codicil.

In general, New York's statute on the execution of Wills (EPTL § 3-2.1) does not allow a holographic Will, that is a Will handwritten and signed by the testator without the presence of attesting witnesses.  The purpose of the witness rule is to verify that the testator actually created the Will instrument, and that the testator had testamentary capacity.  There are several emergency exceptions to the statute concerning holographic Will found in EPTL § 3-2.2.  These include armed forces personnel on active duty and mariners at sea.  However, these holographic Wills will expire one year following discharge from the armed forces.  The law presumes that within one year after discharge the individual has enough time to create and sign a properly witnessed Will.

A Will is usually signed during a Wills execution ceremony.  At that time, the testator signs the Will in the presence of the attesting witnesses.  The testator's signature need not be legible.  New York even allows for an "X" as a signature.  If the testator is physically unable to sign without assistance, a guiding hand is allowed, so long as it is the testator's intent that assistance be provided to sign the document.  If the testator is completely unable to sign the document, then another person may sign in the testator's stead so long as it is done under his or her director and in the testator's presence.   This is known as a proxy signature.  The proxy must also sign his or her name, and will not be included as one of the two necessary attesting witnesses.  In such circumstances, it is wise to videotape the Wills ceremony in anticipation of a potential Wills contest.

The testator's signature must be placed at the end of the Will or the codicil.  Any words that follow the signature will be ignored.  However, if the words that follow the testator's signature are material to the completion of the distribution plan, then the entire Will is invalid.  The person would die intestate, and his or her estate would be subject to New York's default intestate statute (EPTL § 4-1.1).

New York requires two attesting witnesses to the testator's signature.  The testator must sign the Will in the presence of each witness.  But each witness need not sign in the presence of the other.  The execution ceremony must be completed within 30 days of the time when the first witness signs, not when the testator signs.

In the case of a codicil (an amendment or supplement to the Will), it must also be executed with the same formalities as a Will.  For a codicil, however, New York does not require that the witnesses sign in each other's presence or that they sign in the presence of the testator.

Though a self-proving affidavit is not required for a valid Will in New York, it is nonetheless a very good idea.  Your attorney can prepare this form for you as part of your Wills package.  The purpose of the self-proving affidavit is to certify the validity of the testator's signature in the event of a Wills contest.  The testator and three witnesses must sign the affidavit together in the presence of a Notary Public (many attorneys are also notaries public).  The Notary will require that the testator and the witnesses swear an oath as to the authenticity of the signature, and may require photo identification of the testator and the witnesses.  The self-proving affidavit will then be affixed to your Will.

In the next blog post, I will examine the requirements for the witnesses, and the role that the witnesses play in assuring the validity of a Will in New York.  I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.