Special issues arise when drafting and executing a last will and testament for a blind or visually impaired person. The main issue relates to the execution provisions of the New York Estates, Powers and Trusts Law (EPTL). Because the EPTL requires testators (the person whose will is made) to sign the will and declare aloud that the document signed is his or her will, additional care should be taken to make sure that it is properly executed.
Generally speaking, in order for a will to be properly made in New York, the testator must have testamentary capacity and the execution provisions of the EPTL must be followed. A person has the capacity to make a will, pursuant to EPTL §3-1.1, if he or she is at least eighteen years old and of sound mind and memory. In addition to a testator having capacity, Section 3-2.1 of the EPTL requires the following for a will to be valid.
- The will must be in writing.
- The testator must sign the will at the end of the document in his or her own name. It is also permissible for someone else to sign on behalf of the testator if that person is in the presence of the testator and signs the will at the testator’s direction.
- The testator must sign the will in the presence of at least two witnesses. The testator may also acknowledge his or her signature to the witnesses.
- The testator must declare to the witnesses that the document is his or her will.
- The witnesses must sign their names and residence addresses at the end of the will.
The problems for the blind or visually impaired involve signing the will and the testator actually knowing that the document he or she signed is the correct one. These issues can be overcome if proper planning and care are taken. Courts have approved wills of the blind or visually impaired under the following circumstances.
- An attorney supervises the execution of the will.
- One of the witnesses reads the will aloud to the testator in the presence of two additional witnesses.
- After the will is read aloud, the testator states that it is his or her will and signs the will with the assistance of one of the witnesses.
- The attestation clause is read aloud and the attesting witnesses signed their names in the presence of the testator.
Another good practice is to specify in the attestation clause of the will that the complete will was read aloud to the testator.
If you or someone you know needs to help a blind or visually impaired person with a will, get in contact with us so we can make sure that their wishes are respected.