First Will Admitted To Probate Under New York Remote Witness and Notarization Law

In response to Covid-19 many states, including New York, implemented temporary orders authorizing remote witnessing and notarization of wills.  In January 2021, in Matter of Ryan, a Will was admitted to probate in New York under the remote witness and notarization law.

The Facts Of Matter Of Ryan

Decedent, William Ryan, contacted an attorney for the preparation of his will.  The communication was telephonic due to Covid-19 restrictions.  Decedent told the attorney that he had a surviving brother and sister, and wanted his sister and petitioner to be sole and equal residuary beneficiaries. He was specifically asked about his decision not to provide for his brother in his will and confirmed that was his decision. Mr. Ryan was sent a draft of the will by the attorney’s office.

Decedent’s health took a turn for the worse and he was admitted to the hospital.  Covid-19 restrictions precluded outside visitors from entering the hospital at that time.

The drafting attorney’s office arranged for a social worker at the hospital to be with Decedent for the execution of the will. The original will was delivered in a sealed envelope to the social worker at the hospital. The social worker then delivered the will to Decedent in his room and remained with him at its execution, serving as “videographer” by utilizing a cell phone. The drafting attorney and two of his staff “attended” and participated in the execution ceremony via a computer in his office.  Decedent opened the sealed envelope containing the original will and reviewed the will with the attorney. A copy of Decedent’s driver’s license had been provided in advance to the attorney’s office, allowing the attorney and his staff to identify Decedent.

Decedent was asked by the attorney if the instrument he was about to sign was his will and responded affirmatively. Decedent was also asked if he wished the attorney’s staff to serve as witnesses to the execution of his will, which he also affirmed. Decedent signed the will, while the attorney and his staff watched on their computer. The cell phone angle was such that Decedent could be seen signing the document in front of him.

Immediately after Decedent executed the will, the original was driven back to the attorney’s office, where his two staff executed the attestation clause and the witness affidavit, which had been stapled with the original will in a will cover.

Compliance With New York’s Remote Witness and Notarization Law

The New York Surrogate’s Court found that the execution ceremony satisfied the requirements of EPTL 3-2.1 governing the statutory formalities for the valid execution of a will in New York.  The will was:

  • Signed at the end by Decedent;
  • The witnesses were able to see Decedent execute the will;
  • Decedent declared the document to be his will and asked the attending witnesses to serve as such;
  • The witnesses attested to Decedent’s signature the same day, shortly after the will was signed.

 

The Court stated:

While Mr. Ryan was not physically present in the same room as the witnesses, they were able to see him execute the will, in real time, using the cell phone camera and the computer. Given the Covid-19 restrictions, the Court finds that this satisfies the presence requirements of EPTL 3-2.1(a)(2)…. The procedure for the execution and attestation of a will need not be followed in the precise order set forth in the statute, so long as all the requisite formalities are observed in a period of time which, in the Surrogate’s view, represents a continuous attestation ceremony. EPLT 3-2.1(b). The Court finds that to be the case here.

On April 7, 2020, Governor Cuomo issued Executive Order 202.14, relied upon by the Surrogate’s Court, which extended the authorization for “remote execution” of wills, which we first wrote about here. The executive order was extended several times to account for the continuing Covid-19 pandemic.

The Court stated:

The Executive Order anticipates that witnesses may sign an electronically transmitted copy of the signature page of the will and may, but are not required to, sign the original signature page of the will, if received within 30 days of its signature by the testator. The execution ceremony coordinated by attorney Gorton more than satisfies the provisions for virtual execution set forth in EO 202.14. Mr. Ryan’s will would be admissible to probate pursuant to terms of that Executive Order, even if the Court had not found that the ceremony also satisfied the statutory requirements of EPTL 3-2.1.

The Ryan case was the first case admitting a will to probate using New York’s remote witnessing authorization, but is certainly not going to be the last.  Key for the court seemed to be the satisfaction of the “presence” requirement through electronic means.

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