Self-Proving Affidavit for Wills Requirements in New York
At a glance
| Availability & governing law | Yes. 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 swears | Any 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 made | During 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 & seal | Any 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 & form | No 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 will | Section 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-state | Current § 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 & exceptions | The 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 affidavit | The 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.
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