Very early on in the pandemic there were reports that many people were using online Will forms. From a legal point of view, this is a very risky procedure. The law of the State of New York (as in most states) has strict requirements for the execution of a Will. Among other things, the person writing the Will (the “testator”) must declare the document to be his or her Will to two witnesses; sign the Will in the presence of the same two witnesses, or acknowledge to the witnesses that the signature at the bottom of the Will is his or hers (the testators). The signature of the testator does not need to be notarized. In fact, courts sometimes struggle with whether a notary who notarizes a signature on the Will can be considered a witness for the purpose of admitting the will to probate. If a person who witnesses the Will signing is given anything under the Will, that provision, in many cases, will be considered void. Persons not aware of this have on occasion asked beneficiaries under the Will (often their family members) to be witnesses to the Will, not realizing that in so doing they are depriving that witness of whatever bequest they have put in the Will.
In New York, if an attorney supervises the execution of the Will there arises a presumption that the execution of the Will was done properly. If the Will is later challenged, this presumption can be a great help in proving that the Will is valid and should be admitted to probate. This is not the case if there is no attorney supervising the execution of the Will.
Normally Wills are executed with the testator, at least two witnesses, and an attorney supervising the execution in one room together. Obviously, that is not very practical in these times of social distancing. Although the NY Governor, Andrew Cuomo, has issued an executive Order to temporarily permit the witnessing of Wills by teleconference, that order has certain specific requirements for a teleconferenced Will signing that need to be adhered to. Unfortunately, it will not be until the validity of Wills signed during this time are challenged in court that one can even be sure that such an order permitting the teleconferenced Will signing is valid, or what some of the provisions of the order may “actually” mean in practice. All the more reason for having a reputable attorney supervise the Will signing, so that one can be a sure as possible as to the compliance with both the law and the Governor’s current Executive Order.
Even if an attorney cannot be there in person, or even if a teleconference is not possible, it would still make sense to have an attorney run you through what must be done so that the Will execution is proper. Do not assume that the directions you find online apply to New York State or that they are up to date or are even accurate.
Another problem with persons executing Wills on their own is that language suggested online, may not be proper for that person’s particular circumstances. A person making a Will must remember that when the Will takes effect, he or she will not be there to tell people what the language “really meant.” It is much wiser to consult with an attorney so that any language in the Will is clear, unambiguous, and legally enforceable – especially if what you want done with your property at your death is in any way complicated.
These are a few of the problematic issues that might arise when someone attempts to draft and execute a Will on their own from a form downloaded off the internet, especially under such extraordinary circumstances as we are now facing.
In many cases making a Will is the wisest course, but it is equally true that in many cases, a Will might not even be necessary. Consulting a reputable lawyer can help you make that decision.
Because there is a lot of fear out there, and people are beginning to think about worst case scenarios, they may think that a Will is absolutely necessary. This in turn, could lead them to executing a Will that is not valid, or which does not do exactly what they want the Will to do, or even worse, disposes of property in a way contrary to their wishes. Sad to say, experience tells us that there are probably people at this moment who are elderly, ill or at risk and are being told by family members they “must” execute generic form Wills which were downloaded from the web and are potentially not going to achieve their real wishes, or even worse, are willing to sign these documents without reading it.
It is important not to panic. The first step to take if you feel a Will might be necessary or you are worried about taking care of your loved ones in the event of your death is to consult with a reputable estate lawyer. Do not believe everything you read online; do not believe without checking with a professional in the area of Wills, Trusts and Estates, any advice given to you by even well-meaning friends or family.