Self-Proving Affidavit for Wills Requirements in New York

Short answer Yes, but New York's SCPA § 1406 is a witness-only substitute-testimony procedure, not the usual testator-plus-witness statutory form. Any or all attesting witnesses may swear before an oath-authorized officer during the testator's life or, at specified persons' request, after death; the affidavit is accepted like testimony taken in court unless an entitled party objects or the court requires examination. The court must still be satisfied that the will is genuine and validly executed.
State
New York
Statute checked
August 9, 2026
Sources
6 statutes
Pending legislation could change this.
New York Electronic Wills Act, Ch. 637 of the Laws of 2025, as amended by Ch. 89 of the Laws of 2026 (Enacted; effective December 12, 2027): Adds EPTL § 3-6.8, a separate electronic-will self-proof route requiring the testator's acknowledgment, witness affidavits, an oath-authorized officer in physical or electronic presence, an official seal, and attachment or logical association with the electronic will. It does not change today's paper-will rule before the effective date. track it Status checked October 4, 2026.

At a glance

Availability & governing lawYes. SCPA §§ 1406 and 1408 let an attesting witness prove an ordinary paper will by an out-of-court affidavit that the Surrogate's Court may accept as in-court testimony; this is not a UPC-style affidavit signed by the testator
Who signs or swearsAny or all attesting witnesses may make the affidavit—one or both, as the proof requires. The testator is only the lifetime requester and does not sign or swear under current § 1406; after death the executor, proponent, proponent's attorney, or any interested person may request it
When it may be madeDuring the testator's life at the testator's request, including at execution or later; after death at a statutorily authorized requester's request (§ 1406(1))
Officer, oath & sealAny officer authorized to administer oaths. Section 1406 prescribes no special seal, certificate, or officer-capacity block; New York's separate electronic-notary law authorizes qualified notaries to perform electronic notarial acts by audio-video technology (§ 135-c)
Required recitals & formNo statutory model form or 'substantial compliance' wording. The witness must state facts that, if uncontradicted, establish the will's genuineness, valid execution, and the testator's competence and freedom from restraint (§ 1406(1))
Attachment to the willSection 1406 does not require the affidavit to be attached, annexed, endorsed on, or written into the will. After death, showing the witness a court-certified photographic reproduction is legally equivalent to showing the original (§ 1406(2))
Electronic, remote & out-of-stateCurrent § 1406 has no electronic-will or foreign-self-proof safe harbor and does not limit its oath officer to New York. General electronic notarization exists under Executive Law § 135-c. Enacted EPTL § 3-6.8 will add a separate electronic-will route—testator acknowledgment, witness affidavits, physical/electronic presence, official seal, and logical association—but not until Dec. 12, 2027
Probate effect & exceptionsThe sworn witness statement is accepted as though taken before the court, unless a party entitled to process objects or the court requires live examination. It supplies evidence of genuineness, execution, competence, and no restraint, but is not conclusive: § 1408 still requires the court to inquire and be satisfied
If there is no affidavitThe will is not invalid. Ordinarily at least two attesting witnesses are produced and examined if available (§ 1404(1)); the court may dispense with unavailable testimony and, when all witnesses are unavailable, use handwriting plus other sufficient facts (§ 1405)

Requirements one by one

Availability and governing law

New York has a self-proof mechanism, but it does not resemble the dominant testator-plus-two-witness affidavit. SCPA § 1406 lets the attesting witnesses make out-of-court affidavits, and § 1408 allows the court to accept an attesting witness's affidavit while deciding whether the will is genuine and validly executed. It is a substitute for witness testimony, not a separate execution form and not a validity requirement.

Who signs or swears

The affiants are "any or all" of the attesting witnesses. That means § 1406 does not require the testator to acknowledge or swear; the testator instead requests the affidavit while alive. After death, the request may come from the executor named in the will, the proponent, the proponent's attorney, or any interested person. Whether one witness's affidavit supplies enough proof in a particular proceeding remains for the court, which must be satisfied under § 1408.

When it may be made

The statute supports both sides of death. During life, an attesting witness may make the affidavit at the testator's request, whether at the signing ceremony or later. After death, the authorized executor/proponent/attorney/interested-person requesters may obtain it. New York therefore does not have the lifetime cutoff found in states that require the testator to join the affidavit.

Officer, oath and seal

The witness swears before "any officer authorized to administer oaths." Section 1406 does not itself prescribe a seal, a certificate form, or a New York-only officer. Executive Law § 135-c separately authorizes a qualified New York notary to perform an electronic notarial act through audio-video communication technology; compliance with that general notarial law is separate from satisfying § 1406's probate-proof content.

Required recitals and form

There is no statutory fill-in form and no substantial-compliance safe harbor. The functional standard controls: the affidavit must state facts that, if left uncontradicted, would establish the will's genuineness, valid execution, and the testator's competence and freedom from restraint at execution. Those facts track what the witness would have to establish in court.

Attachment to the will

The current paper-will statute never says "attached," "annexed," "endorsed," or "following the will." Keeping the affidavit with the will is sensible practice, but it is not a § 1406 attachment element. The section instead addresses identification: after death, showing the witness a court-certified photographic reproduction is equivalent to showing the original.

Electronic, remote and out-of-state rules

Current § 1406 has no electronic-will route and no separate foreign-law safe harbor; its officer phrase is simply "any officer authorized to administer oaths." General electronic notarization exists under Executive Law § 135-c. A materially different system is enacted but future: effective December 12, 2027, EPTL § 3-6.8 will require the electronic-will testator's acknowledgment plus the witnesses' affidavits, allow physical or electronic presence before the oath officer, require the officer's official seal, and require the certificate to be affixed to or logically associated with the electronic will.

Probate effect and exceptions

The witness's sworn statement is accepted "as though it had been taken before the court." That is evidentiary weight, not conclusive validity. The shortcut falls away if a party entitled to process objects or if the court otherwise requires the witness to be produced and examined. Section 1408 independently directs the court to inquire into the facts and be satisfied about genuineness and execution before probate.

If there is no affidavit

The will remains capable of probate. Under § 1404, at least two attesting witnesses ordinarily are produced and examined if that many are in New York and competent and able to testify. Section 1405 lets the court dispense with unavailable testimony and, when all witnesses are unavailable, admit the will on proof of the testator's and at least one witness's handwriting plus other sufficient facts. The missing affidavit changes the proof route, not the will's validity.

Statutes and sources

  • N.Y. Surr. Ct. Proc. Act § 1406 — witness-only affidavit, signer set, lifetime/post-death requesters, content, evidentiary effect, objections, and the court-certified photographic-reproduction rule. https://www.nysenate.gov/legislation/laws/SCP/1406 (accessed 2026-08-09)
  • N.Y. Surr. Ct. Proc. Act § 1404 — ordinary examination of at least two attesting witnesses when available and the parties' examination rights. https://www.nysenate.gov/legislation/laws/SCP/1404 (accessed 2026-08-09)
  • N.Y. Surr. Ct. Proc. Act § 1405 — dispensation and handwriting-proof fallbacks when witness testimony is unavailable. https://www.nysenate.gov/legislation/laws/SCP/1405 (accessed 2026-08-09)
  • N.Y. Surr. Ct. Proc. Act § 1408 — the court must still inquire and be satisfied about genuineness and valid execution. https://www.nysenate.gov/legislation/laws/SCP/1408 (accessed 2026-08-09)
  • N.Y. Exec. Law § 135-c — general electronic notarization through audio-video communication technology. https://www.nysenate.gov/legislation/laws/EXC/135-C (accessed 2026-08-09)
  • N.Y. Est. Powers & Trusts Law § 3-6.8 — enacted future electronic-will self-proof route, as amended by Chapter 89 of 2026; effective December 12, 2027. https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=S08887&term=2025&Summary=Y&Actions=Y&Memo=Y&Text=Y (accessed 2026-08-09)

Source links

Every statute quoted above, linked, with the date we checked it.

N.Y. Surr. Ct. Proc. Act § 1406 · accessed 2026-08-09
N.Y. Surr. Ct. Proc. Act § 1404 · accessed 2026-08-09
N.Y. Surr. Ct. Proc. Act § 1405 · accessed 2026-08-09
N.Y. Surr. Ct. Proc. Act § 1408 · accessed 2026-08-09
N.Y. Exec. Law § 135-c · accessed 2026-08-09
This page is general legal information about how a New York will is proved through an attesting-witness affidavit, not legal advice about a particular will, witness, oath, notarization, death, probate petition, objection, electronic record, or contest. A § 1406 affidavit is evidence accepted like testimony; it is not what makes the will valid, it is not conclusive, and the Surrogate's Court must still be satisfied with genuineness, execution, competence, and freedom from restraint. A will without the affidavit may still be proved through witness testimony or alternate evidence. New York's enacted electronic-will system does not take effect until December 12, 2027. Verified against current official statutory and enrolled-act text on the date shown; consult a licensed New York trusts-and-estates attorney before relying on it.

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