Affivavit of Attesting Witnesses not available for an older will

[dleung65]

Affidavit of Attesting Witnesses not available for an older will

What is the name of your state (only U.S. law)? New York

Hello everyone. My mother just died and I brought the last known will I found for her to a probate attorney. She said that the will which was created in 1984 is missing the affidavit of witnesses. Also, the will which was created by a lawyer, was signed by the lawyer(probably deceased) and possibly an assistant and not notarized. An additional problem is that the names were not printed, so it's a challenge to read the assistants name. The attorney believes that the signatures need to be proven.
Is this really a problem if the assumption is that the affidavit and notary were not required at the time?
Thanks.

 

[PayrollHRGuy]

According to 2006 New York Code - Execution And Attestation Of Wills; Formal Requirements § 3-2.1 there is no mention that either the two witnesses must be notaries or that a will be notarized. I can't find a version of what the law was in 1984 nor do I know if the law has changed or if a change in the law would affect the validity of the will now.

https://law.justia.com/codes/new-york/2006/estates-powers-trusts/ept03-2.1_3-2.1.html

(4) There shall be at least two attesting witnesses, who shall, within
one thirty day period, both attest the testator's signature, as affixed
or acknowledged in their presence, and at the request of the testator,
sign their names and affix their residence addresses at the end of the
will. There shall be a rebuttable presumption that the thirty day
requirement of the preceding sentence has been fulfilled. The failure
of a witness to affix his address shall not affect the validity of the
will.

 

[LdiJ]

What is the name of your state (only U.S. law)? New York

Hello everyone. My mother just died and I brought the last known will I found for her to a probate attorney. She said that the will which was created in 1984 is missing the affidavit of witnesses. Also, the will which was created by a lawyer, was signed by the lawyer(probably deceased) and possibly an assistant and not notarized. An additional problem is that the names were not printed, so it's a challenge to read the assistants name. The attorney believes that the signatures need to be proven.
Is this really a problem if the assumption is that the affidavit and notary were not required at the time?
Thanks.

You might want to get a quick consult with another attorney, perhaps one that is a bit older than the one you are talking to now. I do not believe that a probate court could refuse to accept a will that was done properly at the time it was written. However another attorney could give you a clearer picture.

 

[PayrollHRGuy]

Let me clarify. The 2006 version of the law I quoted is the current law.

 

[dleung65]

According to 2006 New York Code - Execution And Attestation Of Wills; Formal Requirements § 3-2.1 there is no mention that either the two witnesses must be notaries or that a will be notarized. I can't find a version of what the law was in 1984 nor do I know if the law has changed or if a change in the law would affect the validity of the will now.

Payroll,
That's definitely helpful, but my more immediate concern was with the absence of the Affidavit, and verification of the signatures.
Thanks.

 

[Zigner]

Payroll,
That's definitely helpful, but my more immediate concern was with the absence of the Affidavit, and verification of the signatures.
Thanks.

Why do you feel those things are necessary? I don't see it in the law...

 

[PayrollHRGuy]

Payroll,
That's definitely helpful, but my more immediate concern was with the absence of the Affidavit, and verification of the signatures.
Thanks.

Reading the law it seems that only this would be needed.

Signature Date Signature Date
_____________________ ___________________________


I can't even find where anything in the law that would require that the names be printed.

 

[dleung65]

Reading the law it seems that only this would be needed.

Signature Date Signature Date
_____________________ ___________________________


I can't even find where anything in the law that would require that the names be printed.

The only issue with the names not being printed is the assertion from the lawyer that the signatures/witnesses be verified. The signature isn't legible, so it'll be that much harder to verify the witness, especially since the lawyer already passed 10 years ago and presumably his practice.

 

[dleung65]

Why do you feel those things are necessary? I don't see it in the law...

According to the lawyer, it's a requirement now(affidavit), so it should apply. That's my question to all you experts.

 

[Zigner]

The only issue with the names not being printed is the assertion from the lawyer that the signatures/witnesses be verified. The signature isn't legible, so it'll be that much harder to verify the witness, especially since the lawyer already passed 10 years ago and presumably his practice.

You may wish to speak to another attorney.

 

[justalayman]

According to the lawyer, it's a requirement now(affidavit), so it should apply. That's my question to all you experts.

The current law was posted

If says nothing about an affidavit. It says the witness signatures along with their addresses will be on the will:

one thirty day period, both attest the testator's signature, as affixed
or acknowledged in their presence, and at the request of the testator,
sign their names and affix their residence addresses at the end of the
will.

 

[justalayman]

The law currently requires

Signature of testator

If another signs on behalf of the testator, the signature and address of that person (this person does not count as one of the two witnesses)

The signature and addresses of two witnesses. The absence of the address does not invalidate the will.

I’ve found nothing requiring any name be printed.
I’ve found nothing requiring or even allowing an affidavit be used by a witness


So the signatures may need to be verified. So? Especially if it was an attorney and one of that attorneys assistants, there are likely to be examples of both signatures available

I wouldn’t get to worried about proving the signatures until a judge says you have to verify the signatures.

 

[LdiJ]

The law currently requires

Signature of testator

If another signs on behalf of the testator, the signature and address of that person (this person does not count as one of the two witnesses)

The signature and addresses of two witnesses. The absence of the address does not invalidate the will.

I’ve found nothing requiring any name be printed.
I’ve found nothing requiring or even allowing an affidavit be used by a witness


So the signatures may need to be verified. So? Especially if it was an attorney and one of that attorneys assistants, there are likely to be examples of both signatures available

I wouldn’t get to worried about proving the signatures until a judge says you have to verify the signatures.

And if the attorney you are speaking to says that they need to be verified before a judges says that you have to verify them, then, once again, speak to another attorney.

 

[dleung65]

I found some descriptions on a "self proving will" that may explain my lawyer's assertions. This is just my assumption based on what I read.

"A self-proving will, or a self-proving affidavit attached to a will, certifies that the witnesses and testator properly signed the will."

"A self-proving will saves your witnesses and beneficiaries considerable inconvenience by not requiring a court appearance to affirm the will’s validity. It also gives
your will an extra layer of authentication that can help your beneficiaries avoid a long and costly probate process, and can be especially helpful when one or more
of your witnesses cannot be located or are deceased.
The self-proving affidavit which is part of or attached to a will may be similar to the wording from..."

Maybe this is what is common now?

 

[justalayman]

I found some descriptions on a "self proving will" that may explain my lawyer's assertions. This is just my assumption based on what I read.

"A self-proving will, or a self-proving affidavit attached to a will, certifies that the witnesses and testator properly signed the will."

"A self-proving will saves your witnesses and beneficiaries considerable inconvenience by not requiring a court appearance to affirm the will’s validity. It also gives
your will an extra layer of authentication that can help your beneficiaries avoid a long and costly probate process, and can be especially helpful when one or more
of your witnesses cannot be located or are deceased.
The self-proving affidavit which is part of or attached to a will may be similar to the wording from..."

Maybe this is what is common now?

So the will must be examined. It doesn’t make the will invalid. It makes the process easier but it doesn’t mean your will is invalid.