In order for a will to be valid, a bevy of formal, technical requirements must be exactingly complied with. Among these is the rule, codified in EPTL 3-2.1(a), that the testator’s signature at the end of the will must be made in the presence of at least two witnesses (or, if signed outside the presence of witnesses, presented to at least two witnesses and acknowledged to them as his or her signature on their last will and testament). The witness requirement is obviously designed to bolster the fact that a purported will actually reflects the desires and intentions of the person who made it, and the failure of a will to have the requisite witness signatures is almost invariably fatal to its validity. In some ways, New York law is quite tolerant of variation when it comes to witness signatures – they need not be actual signatures, for example, but can be marks, symbols, etc. But when it comes to the manner in which they were obtained, however, the law is anything but tolerant. The testator must inform the witnesses that they are witnessing his or her signature on his or her will, and witnesses must actually see the signature on the document in order to act as a valid witnesses. Because of this requirement of actual visual verification of the testator’s signature, New York courts have held that blind persons cannot act as subscribing witnesses to the execution of a will. See Matter of Losee, 13 Misc. 298, 34 N.Y.S. 1120 (Sur. Ct. Westchester County 1895).
The visual verification requirement is just one aspect of the complexity of the law governing the proper creation and probate of a last will and testament. It serves as a good reminder of why it is always best to have your will prepared by and executed per the instructions of an attorney.