Wills - Attestation Clause
The act of witnessing an instrument of writing, like a Will, at the request of the party making the Will, is done in the attestation clause section of the Will. The validity and form of an attestation clause is usually a matter of U.S. state law, and can vary from state to state. The attestation clause in a Will is essential. New York Estates, Powers and Trusts Law Section 3-2.1 provides the requirements for the signing and witnessing of a Will. The statute has a number of provisions which include the requirement that the Will be in writing and signed at the end. The statute further provides that there must be at least two attesting witnesses and that any writing that is placed on the Will following the testator's signature, other than the witness attestation, is not to be given any effect. Another requirement of the statute is that the testator declare to the witnesses that the paper he is signing is his Will.
The preparation and execution of a Last Will may seem rather routine. However, the provisions of the Will providing for dispositions to beneficiaries as well as the inclusions of significant statutory provisions such as the attestation clause allow a smooth and efficient probate and estate settlement process. Without proper language and terms a Will may be subject to a Will Contest and invalidated.
A Will must be drafted and executed properly to be effective. It is most important that the Will be worded in clear, unambiguous language. As noted, one clause that should always be inserted in a Will is the attestation clause (the part of the will that deals with the witnessing of the testator's signature). New York requires that there be witnesses to a Will and that certain formalities of signing be followed. The attestation clause in a Will provides that these requirements were adhered to. Sometimes the witnesses to the Will are dead or have moved. In either case, there may be great difficulties in obtaining probate if there is no attestation clause. The attestation clause of the Will, while not complicated, is important.
Although the statute only requires that there be two witnesses, it is common for New York Will Lawyers to have three persons act as attesting witnesses. The witnesses should be disinterested and not receive any benefit under the Will. At the time the Will is executed the witnesses usually also sign an affidavit which sets forth the basic elements regarding their witnessing of the Will such as the testator was over 18 years of age and that they saw the testator sign the Will and that all the witnesses were present when the testator and witnesses signed. This paper is called a self-proving affidavit and is attached at the end of the Will and helps expedite the probate of the Will.
I have many years of experience working with and advising clients in the creation and implementation of plans and Wills that effectively express the clients’ personal desires regarding the disposition and protection of assets while providing potential tax advantages and security for family and beneficiaries. I have represented many clients with probating Wills and administering estates.
I graduated in the top 10% of my class at The New England School of Law in Boston and served on the prestigious “Law Review.”
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