New York County Surrogate Kristen Booth Glenn has disqualified an attesting witness to a will from receiving a "beneficial disposition" under the will in the Matter of the Estate of Cynthia R. Wu 877N.Y.S.2d 886. In this matter, the executor had applied for an order directing the decedent’s brother — who was also the beneficiary of two life insurance policies– to pay his ratable share of the estate tax even though the will contained a clause specifically relieving him of any obligation to pay any estate taxes resulting from his receiving the proceeds of the policies. The matter was complicated by the fact that the brother – beneficiary was also one of the attesting witnesses to the will.

The court stated that "in light of EPTL 3-3.2(a)(1) which provides that a ‘beneficial disposition’ to an attesting witness whose testimony is necessary to prove the will is void"  it would grant the order directing the payment of taxes by the brother (significantly, the law provides that where an attesting witness is a distributee, a disposition is valid to the extent that it does not exceed the witness’s intestate share. Arguing against the executor’s application, the decedent’s brother claimed that he was not aware of his designation as a beneficiary  when he witnessed the will, but the surrogate explained that "Such a contention, even if true, is unavailing. A testator is not presumed to have revealed the contents of her will to the attesting witness". The brother went on to argue that a notary public before whom the two witnesses and the testator appeared (no doubt to notarize the self-executing or "living" affidavit) qualifies as a third attesting witness but the court further held that a notary public did not qualify as an attesting witness.