Generally, attorneys have the witnesses to a will’s execution sign an affidavit attesting to witnessing the execution. While this isn’t a requirement, in New York and many other jurisdictions, this affidavit can be submitted in lieu of the court hearing the witness’s testimony. This accommodation saves the estate time and money by not requiring hearings and possibly avoiding further litigation. 

What happens then when an attesting witness affidavit is not executed by the witnesses to a will? The best case scenario is that the witnesses are available to testify as to the genuineness of the will. While it can prove costly and time-consuming, this ensures the will offered for probate is indeed genuine and accepted as such by the court.

On occasion, however, the witnesses to a will may no longer be available to provide such testimony. In such circumstances, the New York legislature has enacted the Surrogate’s Court Procedure Act, Section 1405 to instruct the courts on how to proceed. 

If one of the attesting witnesses has died, is absent from the state and cannot be found, or is incompetent, a will may still be probated if another attesting witness can testify to the court’s satisfaction. 

When the attesting witness can be found, but is out of state, the court is required to take the testimony of the out-of-state witness by commission if it can be obtained with reasonable diligence. Now with the widespread use of video calls through applications such as Zoom or Microsoft Teams, it is likely that a court would find that an out-of-state witness’s testimony may be obtained with reasonable diligence by those methods. 

Another variation is where all of the attesting witnesses are alive, in state and competent, but one witness may have forgotten the occurrence or testifies against the execution of the will. In such a scenario, the will may only be probated if there are other facts supporting the probate of the will and one of the other witnesses has testified in favor of probating the will. 

If all of the attesting witnesses have died, are incompetent or unable to testify by reason of physical or mental condition, or are absent from the state and their testimony has been dispensed with by the court, the will may nevertheless be admitted to probate. However, the proponent of the will must submit proof of the handwriting of the testator and at least one of the attesting witnesses. Other facts in support of the will may also be considered. 

Proving the testator and one witness’s handwriting may prove difficult, especially when the name of the witnesses on the will cannot be read. However, proponents of a will still have one additional way in which the will can be admitted for probate. A New York court may make an exception for a will if it satisfies all the elements of an ancient document. The Ancient Document Rule requires that the will must have been executed at least 20 or 30 years ago (depending on the jurisdiction within New York), have been found in a “natural place of custody” and be unsuspicious in appearance. Richmond County follows the Federal Rules of Evidence timeline for ancient documents and requires the will to be at least 20 years old; whereas Queens requires the document to be at least 30 years old. Courts in New York have held that a safe within a testator’s home is considered a natural place of custody for a will. Further, the unsuspicious in appearance requirement considers not only that the will looks to have been executed in an unsuspicious way, but by the context of what is written in the will itself. 

If you need or someone you know needs assistance with probating a will, please contact one of our trust and estate attorneys.