Notarizing a self-proving affidavit

[JoannaCW]

Jurisdiction

New York

My mother would like to make her will self-proving by getting an affidavit of witnesses notarized (after signing her will in their presence and the presence of the notary and having them sign the will as witnesses at the same time). I gather that this is legal in New York State. The language I have found for such affidavits includes a statement that the witnesses are 'duly sworn'--the Bar Association's sample form starts out "Each of the undersigned, individually and severally being duly sworn, deposes and says..." and concludes "Severally sworn to before me..." Another sample form from expertlaw.com begins "We....the testatrix and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare..."

There is a notary public in my village office, but when I called to ask if she could swear in witnesses and notarize their signatures she said she could witness and notarize signatures but was puzzled by the part about swearing in. I'm trying to understand two things: what exactly do the witnesses need to swear? and can any notary oversee that swearing? I've read that notaries in NY can administer oaths, but don't know if there are exceptions of which I might be unaware. (The notary said to consult an attorney, but my mother strongly prefers not to go that route, partly because of the expense.)

Any advice would be greatly appreciated.

 

[zddoodah]

I gather that this is legal in New York State.

It's certainly legal, and it's awfully hard to understand why you thought it might not be legal. This article discusses the concept of "self proving" wills in New York. This article discusses the basic requirements for a valid will under New York law.

The language I have found for such affidavits. . . .

Why are you -- obviously not an attorney and a person who, presumably, will be a beneficiary under the will -- obtaining language for the will or related affidavits? Not a good idea for at least two reasons.

what exactly do the witnesses need to swear? and can any notary oversee that swearing? I've read that notaries in NY can administer oaths, but don't know if there are exceptions of which I might be unaware. (The notary said to consult an attorney, but my mother strongly prefers not to go that route, partly because of the expense.)

Read the articles to which I linked, but the notary is correct, and you should be giving your mother the same advice. It's up to her to handle this as she sees fit, but what you're describing is almost certain to result in problems down the road. Getting a basic will done is not particularly expensive but could save thousands of dollars in legal after your mother dies.

 

[JoannaCW]

Thanks. I'm still not clear on why the notary doesn't know what it would take for witnesses to be 'duly sworn." I am looking up language because my mother finds computers immensely frustrating and therefore asked me to see what I could find. (This worked earlier for her legal separation...) I am aware that in cases of complex bequests, or where the will is likely to be contested, it's important to consult an attorney. Since my mother's will is neither complex nor likely to be contested, she prefers the do-it-yourself route.

 

[txls]

I am a notary in Tx. Before I notarize I have to ask the person to "swear" to me that a) they signed of their own free will and b) they have read and understand what they signed.
I believe that would be considered "duly sworn".

 

[cynthiag]

I agree with txls. I am a notary in Alaska and do the same thing.

 

[JoannaCW]

Thank you, txls and cynthiag!