Can my wife witness my Will?

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Can my wife witness my Will?

NYS requires attestation to validate a Will; 2 witness signatures. Since I am the sole beneficiary of her’s and she is the sole beneficiary of mine, does that cause a conflict of interest with regards to being a witness?

Asked on July 20, 2011 New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

A beneficiary can also be a witness to a Will. However this not advised. A witness to a Will should be a completely disinterested person to avoid any future contests to the Will. In NY the general rule is that the bequest to the witness/beneficiary shall be void, if that witness’s testimony is necessary to admit the Will into probate. The exception to this is unless:

  1. there are at least 2 other "disinterested" witnesses (i.e. 3 or more witnesses total), or
  2. the interested witness would be an intestate heir (which your wife would be) if the person making the Will died without a Will; however in such case that beneficiary would take the lesser of either the bequest or intestate distribution.

I realize that this can all get a bit confusing. Bottom line, your best option is to not have your spouse witness your Will.


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