48 The QUEE NS Courier • health • NOVEMBER 3, 2016 for breaking news visit www.qns.com ▶health The Elder Law Minute TM THE NUTS AND BOLTS OF A WILL EXECUTION By Ronald A. Fatoulah, Esq. and Deby Rosenfeld, Esq. As many know, a Last Will and Testament is a document in which a person (the “testator”) articulates to whom he/she wishes to leave all of his/her assets upon death. Wills are official documents and they often mean a great deal to the respective testator. Because a will is such an important document, it must meet the legal requirements set forth by the state in which the testator resides in order to be valid. A will is not effective until it is signed by the testator, and the actual will execution is critical to ensuring that the testator’s wishes are ultimately carried out properly. To begin with, in New York State the will must be in writing and subscribed, i.e. signed, elder law by the testator at the bottom of the document. The significance of the signature being required at the end of the will is that any writing that follows the testator’s signature will not be treated as part of the will. Accordingly, if an individual wishes to change or add any provisions to his/her will, he/she can either have a codicil prepared or simply have the entire will redone. The testator must sign the will in the presence of two witnesses, but the witnesses need not sign in each other’s presence. Each witness must sign the will in the testator’s presence within 30 days of the testator’s signing and should include his or her address of residence with the signature. It is important for the witnesses to be disinterested parties. A person who is a beneficiary should not serve as a witness to the will. If a witness is in fact a beneficiary under the will, the document will still be valid but the bequest to the interested witness will be voided. At the time of the will signing, the testator must confirm that the will he/she is signing is in fact his/her will and reflects his/her intent. The testator must also request each witness to sign the will thereby affirming that the testator knows that he/she is executing a will. In New York, this process is often referred to as the publication requirement, and is an integral part of the will execution. All these rules are necessary in order to impart the importance and significance of the actual will. The testator needs to show the witnesses that he/she understands the nature of the document being signed, and these actions ultimately protect the authenticity of the will if it is challenged in the future. While estate planning attorneys might slightly vary their will signing practices, the basic rules should always be observed. Further, because the supervising attorney might not specifically recall each and every will signing, the fact that he/she has a set routine that is strictly adhered to makes any future testimony regarding a will execution valid and trustworthy. In other words, even if the attorney does not remember the actual details of a will execution that is later challenged, he can honestly maintain that he followed the same procedure for each and every will. A will should always be drafted by an attorney who specializes in estate planning, and equally important, the signing of a will should always be supervised by an attorney who is well versed in this area. Ronald A. Fatoullah, Esq. is the principal of Ronald Fatoullah & Associates, a law firm that concentrates in elder law, estate planning, Medicaid planning, guardianships, estate administration, trusts, wills, and real estate. Debby Rosenfeld, Esq. is a senior staff attorney at the firm. The law firm can be reached at 718-261-1700, 516-466-4422, or toll free at 1-877-ELDERLAW or 1-877-ESTATES. Mr. Fatoullah is also the co-founder of JR Wealth Advisors, LLC. The wealth management firm can be reached at 516-466-3300 or 800-353-3775. ROnald Fatoulah, ESQ, CELA* ‘I REMEMBER…’ AND AGING The shape of memory changes for many people in later life. If our typical old person has one real complaint about his own mental functioning, it is likely to concern his memory for recent events. A word, a name or a fact, just doesn’t come to mind when he wants it. What happened in the distant past is likely to be clear and precise in his mind. He can accurately recall events that occurred 60 or 70 years ago, but may draw a blank for what happ e n e d a week ago last Monday. The picture is even more complex than this. The research shows that another type of memory also must be distinguished (i.e. recall for immediate events). The old person in good health does not appear to suffer any particular problems in this regard. He can remember what has just happened, can remember very well what happened decades ago, but has difficulty with the time in between long ago and a moment ago. Why these differences in memory? Current research suggests several processes must function well if we are to have a sound memory. The experience has to register upon us in the first p l a c e . This is obviously a necessary step both for l e a r n - ing and rememb e r i n g . Next the e x p e r i - e n c e must be entered into a sort of storage system where it is coded and becomes part of our personal data bank. But we must also have an effective retrieval system, a way of searching through all that we have on file and coming up with the particular information we need at the moment. Our childhood memories have had plenty of time to settle into our data banks. However some of the more recent experiences may fail to take. They fade away before the memory trace can be entered into permanent storage. If we are distracted for psychological reasons or undergo a weakening in the physiological processes that support memory function, then incoming information may not make a clear enough impression to become part of the long-term storage system. Unfortunately, some of the “solutions” we come up with can create additional problems in everyday life. A person might withdraw from social interaction on a favorite activity because he is afraid that his memory problems will show. Another person may develop habits that make life more complicated (i.e. changing the subject or picking an argument when he fears that his memory will be tested). Others borrow, bend or simply invent facts to replace those that do not come easily to mind. More satisfactory adjustments are ultimately made by those who acknowledge their memory problems and neither surrender to them nor try to cover it up. One possible approach that can be helpful for the older person with memory issues is to discuss it with others who may have similar concerns. Also, there are professionals with experience in the field of geriatrics who understand this problem and can be of great help. Sheldon Ornstein Ed.D, RN Dr. Sheldon Ornstein is a registered professional nurse with a doctoral degree in nursing organization. He has specialized in the care of older adults and has published many articles on the subject. He has done post-graduate work in gerontology and has taught at several universities. In 2013, he was inducted into the Nursing Hall of Fame at Teachers College, Columbia University.
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