Can my wife witness my Will?

UPDATED: Jul 20, 2011

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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


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

Answered 11 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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