This includes ensuring your will has the proper signatures, witnesses, and that your signature is placed at the end of the document. Additionally, you (the Testator and will-maker) must be of sound mind and legal age while avoiding any issues like fraud or mistakes. Let’s explore everything you need to know about creating a valid will in New York state.

In New York, anyone creating a will (the “Testator”) must be at least 18 years old and of sound mind, meaning they fully understand their actions and aren’t experiencing any mental impairments that would hinder their decision-making. This ensures the will genuinely reflects their wishes and helps prevent fraud or coercion. For the complete legal requirements, take a look at N.Y. EPTL 3-1.1.

A New York will must be in writing and signed by the Testator (the will-maker) at the end of the document. You can’t sign it at the top of the agreement. If someone else signs for the Testator (because they are unable to do so themselves), it must be done in their presence and at their direction. That person must also sign their own name and address, but they can’t be one of the witnesses. See N.Y. EPTL 3-2.1 for the fine print.

The will must be witnessed

The will-maker (i.e., Testator) must sign the document in the presence of two witnesses. There is also a ceremonial process they must follow when signing and witnessing. The Testator must declare to each witness that the document is their will. The two witnesses must include their addresses on the document. See N.Y. EPTL 3-2.1 for the fine print.

The two witnesses to your will must be adults (18+), competent (of sound mind), and not beneficiaries of your will. This means that the two witnesses signing on your will must not also be receiving anything from your will. This is to avoid any potential for fraud or duress in the curation of your will. See N.Y. EPTL 3-3.2 for more details about beneficiary witnesses.

What is a holographic and nuncupative will?

A “holographic” will sounds like something from a sci-fi movie, but it really just means a will that is handwritten by a Testator and doesn’t follow the rules, such as having witnesses. A “nuncupative will” is a fancy legal term for a verbal will–someone orally expresses their desires for their assets to another person.

However, in New York, these types of wills are only valid for the following people:

• A sailor while at sea.

If you are not one of the above people, you cannot create a holographic or nuncupative will in New York. These wills are only valid for these types of military people because it allows for them to express their wishes in urgent situations. They don’t require the typical will formalities in order to get their wishes out quickly. See N.Y. EPTL 3-2.2 for the fine print on nuncupative and holographic wills in New York. 

A self-proving affidavit is something you can get from a notary public when you sign your will, along with your two witnesses, in front of a notary public. It’s very similar to an attestation clause, except this one basically is done with a notary public present. 

A self-proving affidavit is a sworn statement by the witnesses and testator that they witnessed the testator sign the will and that the testator declared it to be their will. It also usually confirms that the testator appeared to be of sound mind and free from undue influence. 

Including a self-proving affidavit with your will can simplify the probate process after your death by eliminating the need for the witnesses to testify in court if it is ever challenged. This can save time and money for your loved ones during an already difficult time.

Not only do you need to follow the formality requirements such as being 18+, being of sound mind, putting it in writing, signing it at the end of the document, and having it witnessed, but you also need to make sure that the will is absent from any form of duress, fraud, mistake, etc. If a will was procured under any element of bad faith, such as tricking someone, lying to get someone to sign a document, etc., then it can be set aside by a New York court. In addition, not being of mental capacity, not signing the document, and not having proper witnesses are all other ways that your will can be thrown out in New York.

The legal requirements for a will in New York are simple!

It’s not rocket science–just put it in writing, sign the document (at the end of it), get two competent witnesses, and make sure you’re of age and of sound mind. Easy peasy! For bonus points, you can add an attestation clause for your witnesses to sign and a self-proving affidavit to be signed and stamped by a notary public. Then, you’re well on your way to the ultimate peace of mind and protection for your loved ones.