A self-proving affidavit is a sworn statement signed by the witnesses to a New York will that lets the Surrogate's Court treat their account of the signing as if they had testified in court. The rule comes from Surrogate's Court Procedure Act (SCPA) § 1406. Without it, the probate court generally wants live testimony from the attesting witnesses, which can mean tracking down people years or decades after a will was signed.
What is a self-proving affidavit under SCPA § 1406?
It is an affidavit made out of court by one or more attesting witnesses that the court accepts in place of their testimony. SCPA § 1406 carries the title "Proof of will by affidavit of attesting witness out of court", and it sits in Article 14 of the SCPA, the article that governs probate proceedings.
The section opens with the words "[i]n addition to other procedures prescribed for the proof of wills," so the affidavit is an added route to proving a will, not a replacement for the rest of Article 14. A will without the affidavit can still be probated; the proponent simply has to prove it another way.
The statute itself never uses the word "self-proving". It speaks of the witness's "affidavit" and "sworn statement".
What must the attesting witnesses' affidavit contain?
The affidavit must state facts that, if no one contradicts them, establish three things: the will is genuine, it was validly executed, and the testator was competent and free of restraint when signing. The statute describes it this way:
"any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint."
— New York Surrogate's Court Procedure Act (SCPA) § 1406(1)In practice, "the validity of its execution" points back to the signing formalities in Estates, Powers and Trusts Law (EPTL) § 3-2.1. A well-drafted affidavit walks through each of them in the witness's own voice:
- Signature at the end. EPTL § 3-2.1(a)(1) requires that the will "be signed at the end thereof by the testator" or by another person in the testator's presence and by the testator's direction.
- Signing or acknowledgment before the witnesses. Under EPTL § 3-2.1(a)(2), the testator's signature must be affixed in the presence of each attesting witness "or shall be acknowledged by the testator to each of them to have been affixed by him or by his direction."
- Publication. EPTL § 3-2.1(a)(3) requires the testator to "declare to each of the attesting witnesses that the instrument to which his signature has been affixed is his will."
- Two witnesses within 30 days. EPTL § 3-2.1(a)(4) states: "There shall be at least two attesting witnesses, who shall, within one thirty day period, both attest the testator's signature, as affixed or acknowledged in their presence, and at the request of the testator, sign their names and affix their residence addresses at the end of the will."
- Competence and no restraint. SCPA § 1406(1) itself requires facts showing the testator was "in all respects competent to make a will and not under any restraint."
The affidavit must be sworn "before any officer authorized to administer oaths". A signature without an oath does not meet the statute.
Who can ask the witnesses to sign, and when?
The testator can request the affidavit during life, and after death the executor, the proponent, the proponent's attorney, or any interested person can request it. That timing flexibility matters.
The cleanest approach is to have the witnesses sign the affidavit at the same ceremony where the will is executed, at the testator's request, while every detail is fresh. Nothing in SCPA § 1406 limits it to that moment, though. If a will was signed without an affidavit, the executor named in the will can go back to a living witness after the testator's death and ask for one.
The statute uses the words "any or all of the attesting witnesses", so it does not require every witness to sign.
Can the witnesses sign after the testator dies if the original will is already filed?
Yes. After death, the witnesses can be shown a court-certified photographic copy instead of the original. SCPA § 1406(2) provides:
"For the purposes of making the affidavit referred to in this section, after the death of the testator, the exhibition to the witnesses of a court-certified photographic reproduction of the will shall be deemed equivalent to the exhibition to them of the original will."
— New York Surrogate's Court Procedure Act (SCPA) § 1406(2)Why does the affidavit let the court admit the will without calling the witnesses?
Because SCPA § 1406(1) directs that the sworn statement "shall be accepted by the court as though it had been taken before the court, unless" one of two exceptions applies. That language is what removes the need for a court appearance in an unopposed case.
The default rule in SCPA § 1404(1) shows what the affidavit replaces:
"Except as otherwise provided in this article, 2 at least, of the attesting witnesses must be produced before the court and examined before a written will is admitted to probate if so many of the witnesses are within the state and competent and able to testify."
— New York Surrogate's Court Procedure Act (SCPA) § 1404(1)SCPA § 1406 is in the same article, so it is one of the provisions that "otherwise provided in this article" reaches. When the affidavit is in the file, the executor filing a probate petition in, for example, the New York County Surrogate's Court does not have to bring two witnesses before the court to describe a signing that may have happened many years earlier. For a broader look at the probate filing itself, see our New York probate and estate administration guide.
When can the Surrogate's Court still require testimony?
The court can still require the witnesses to appear in two situations: when a party entitled to process objects, or when the court decides for any other reason that it wants them produced. The statute lists both exceptions directly after the acceptance rule:
"The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless: (a) a party entitled to process in the proceeding raises objection thereto or (b) for any other reason the court may require that the witness or witnesses be produced and examined."
— New York Surrogate's Court Procedure Act (SCPA) § 1406(1)The first exception belongs to the parties. A "party entitled to process" in the probate proceeding can object to the affidavit and force the question back to live proof.
The second exception belongs to the court. The words "for any other reason" give the Surrogate open discretion.
The practical lesson: a self-proving affidavit is strong evidence in an uncontested probate, but it does not make a will immune from challenge. If you expect a contest, read our guide on contesting a will in New York.
How does SCPA § 1406 relate to SCPA § 1404 examinations?
They do different jobs. SCPA § 1406 lets the court accept a witness's sworn statement as proof of the will; SCPA § 1404(4) gives parties a separate right to question witnesses and others, before or after objections are filed.
SCPA § 1404(4) states that "[i]n all cases the proofs must be reduced to writing." It then gives parties an examination right:
"Any party to the proceeding, before or after filing objections to the probate of the will, may examine any or all of the attesting witnesses, the person who prepared the will, and if the will contains a provision designed to prevent a disposition or distribution from taking effect in case the will, or any part thereof, is contested, the nominated executors in the will and the proponents and, upon application to the court based upon special circumstances, any person whose examination the court determines may provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will."
— New York Surrogate's Court Procedure Act (SCPA) § 1404(4)Nothing in SCPA § 1406 cuts off that right. A witness who signed a self-proving affidavit can still be examined under SCPA § 1404(4), and the subject matter is wide: the statute allows examination "as to all relevant matters which may be the basis of objections to the probate of the propounded instrument." Parties also receive "all rights granted under article 31 of the civil practice law and rules with respect to document discovery."
Two more points from SCPA § 1404 connect to the affidavit:
- Limit on repeat examinations. SCPA § 1404(4) provides that "[n]o person who has been examined as a witness under this section shall be examined in the same proceeding under any other provision of law except by direction of the court."
- Who pays. Under SCPA § 1404(5)(a), for examinations conducted before objections are filed, unless the court directs otherwise for good cause shown, "the testator's estate shall pay the costs of" the initial production or commission and examination of the first two attesting witnesses within the state who are competent and able to testify and are produced by the proponent (or, if none is in the state and able to testify, the closest out-of-state witness), plus "the stenographer and one copy of the transcripts of such examinations for the court and any guardians ad litem." Other examination costs follow CPLR article 31.
Put simply, the affidavit proves the will when no one objects, and the § 1404(4) examination is how a party tests the witnesses' account. Our SCPA guide to the New York Surrogate's Court covers how these provisions fit into the wider procedure.
What should you check when signing a will with a self-proving affidavit?
Check that the affidavit tracks the statute and the actual ceremony. A short checklist:
- Confirm the affidavit addresses genuineness, valid execution, competence, and absence of restraint, as SCPA § 1406(1) requires, and recites each EPTL § 3-2.1 formality.
- Have the affidavit sworn before an officer authorized to administer oaths.
- Use witnesses who are reachable, so a § 1404(4) examination or a court-ordered appearance remains possible if one is needed.
If you are preparing a will, or you are an executor holding a will with no affidavit attached, Estate Law New York can review the documents and explain the proof the Surrogate's Court will expect. Schedule a free consultation with Alan Vaitzman, Esq., at our office at 17th Floor, 299 Broadway, New York, NY 10007 through our contact page.
Frequently Asked Questions
What is a self-proving affidavit for a will in New York?
It is a sworn affidavit by the attesting witnesses under SCPA § 1406 stating facts that establish the will is genuine, was validly executed, and that the testator was competent and not under any restraint. The Surrogate's Court accepts it as though the witnesses had testified in court, unless an exception applies.
Do the witnesses to my will have to go to court if there is a self-proving affidavit?
Usually not. SCPA § 1406 lets the court accept their sworn statement in place of testimony, but the court can still require them to appear if a party entitled to process objects or if the court requires it for any other reason.
Who has to sign the self-proving affidavit?
Any or all of the attesting witnesses may sign it, and it must be made before an officer authorized to administer oaths.
Can a self-proving affidavit be signed after the person who made the will has died?
Yes. After death, the executor named in the will, the proponent, the proponent's attorney, or any interested person can ask a witness to make the affidavit, and SCPA § 1406(2) allows the witness to be shown a court-certified photographic reproduction of the will instead of the original.
How many witnesses does a New York will need?
EPTL § 3-2.1(a)(4) requires at least two attesting witnesses, who must attest the testator's signature within one thirty day period and sign their names and affix their residence addresses at the end of the will.
Does a self-proving affidavit stop someone from contesting the will?
No. Under SCPA § 1404(4), any party to the probate proceeding may examine the attesting witnesses and the person who prepared the will, before or after filing objections, and a party entitled to process can object to the affidavit itself.
Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.