A client in Manhattan once asked if he could leave a significant gift in his will to the paralegal who had helped him organize his affairs for years. He was fond of her and grateful for her work. The issue? He also planned to have her serve as one of the witnesses to the will’s signing. My answer had to be a firm, but careful, no.
The freedom to dispose of your property as you see fit—testamentary freedom—is a cornerstone of New York law. It is not, however, absolute. State law restricts who can be a beneficiary, not to limit a testator’s wishes, but to protect the integrity of the will itself. These rules prevent fraud, coercion, and undue influence, ensuring the document presented to the Surrogate’s Court truly reflects the final intentions of the person who signed it.
The Witness as a Beneficiary
The clearest prohibition involves the will’s witnesses. A valid New York will requires the signature of at least two attesting witnesses. These witnesses serve a critical function: they affirm that they saw the testator sign the will and that the testator appeared to be of sound mind and acting voluntarily.
Because of this gatekeeping role, the law demands their impartiality. Under New York’s Estates, Powers and Trusts Law (EPTL) §3-3.2, any disposition of property made to an attesting witness is void. The purpose is to remove any financial incentive for a witness to lie or to pressure the testator during the signing ceremony. If a witness stands to gain from the will, their testimony about its proper execution becomes suspect.
This does not invalidate the entire will. The law is more practical. The will itself remains valid; only the gift to the witness is void. There is one important exception: if the witness would have been an intestate heir (entitled to a share of the estate had the person died without a will), they may still receive a share. That share, however, is limited to the smaller of the two amounts—their inheritance under the will or their intestate share.
The Attorney Who Drafted the Will
What about the attorney who drafts the document? While no statute automatically bars an attorney-drafter from being a beneficiary, it creates a serious ethical problem and a high probability of a will contest. When a client names their drafting attorney as a beneficiary, it raises an inference of undue influence.
The Surrogate’s Court takes this situation very seriously. When a will leaving a gift to the drafting attorney is offered for probate in New York, the court will hold a special proceeding known as a “Putnam hearing.” The burden falls on the attorney-beneficiary to provide a legitimate explanation for the bequest and prove that it was voluntarily made, free from any influence.
As a matter of practice, our firm has a strict policy against accepting bequests from clients for whom we are preparing an estate plan. Stewardship of a client’s legacy is a profound responsibility. That trust is compromised if there is even a hint that our guidance was self-serving. A will should be a shield for your family, not a document that invites a court battle.
Other Prohibitions and Considerations
Beyond witnesses and drafters, a few other scenarios create legal or practical barriers to an inheritance.
- Pets: You cannot leave property directly to an animal. A dog or cat is considered property under the law and cannot own property itself. For clients who want to provide for a pet, the proper legal instrument is a pet trust. Established under EPTL §7-8.1, a pet trust allows you to set aside funds and appoint a trustee to manage them for the pet’s care.
- Minors: A minor can be a beneficiary but cannot legally own or manage property directly until age 18. A direct bequest requires the Surrogate’s Court to appoint a property guardian—a cumbersome and expensive process. A more prudent approach is leaving the assets in a trust for the minor’s benefit, with a trustee you choose managing the inheritance.
- The “Slayer Rule”: Though it sounds like something from a crime novel, New York’s common law includes a “slayer rule.” It is a simple, equitable principle: a person cannot profit from their own wrongdoing. Someone found to have intentionally and unlawfully caused the death of the testator forfeits any inheritance they would have received under the will.
Choosing your beneficiaries is the core of your estate plan. Ensuring those choices are legally sound is the core of our work. It requires deliberate thought and an understanding of the rules that safeguard your intent.
If you are drafting your will or reviewing an existing one, our firm can provide a confidential review of your beneficiary choices to identify any potential legal or practical issues before they become a problem for your family.
