New York Surrogate’s Court Addresses Adequacy Of Witness Affidavit With Remote Execution of Wills

In Matter of Holmgren, a February 23, 2022 opinion, the New York Surrogate’s Court, Queens County, addressed the adequacy of affidavits submitted with a purported will executed under the auspices of New York Executive Order 202.14 (the Order), which, for the brief period of April 7, 2020 to June 25, 2021, permitted the remote execution of wills.

The Facts of Matter of Holmgren

Before the Surrogate’s Court was a petition by decedent’s brother to probate an attorney-drawn and supervised purported will dated June 22, 2021. The sole distributee of the estate, decedent’s mother, has executed a waiver and consent in favor of its admission.

The matter was uncontested, but the Surrogate’s Court took the opportunity to address the adequacy of affidavits submitted with instruments executed under the New York Order permitting the remote execution of wills.

Here, the affidavit from the attesting witnesses:

  • States that the attesting witnesses were “acquainted” with the testator;
  • Does not state that the audio-visual technology referenced was in working order and allowed for direct interaction between the testator and the witnesses in real time.
  • does not indicate that a legible copy of the signature page was transmitted to the witnesses on the same day that the witnesses observed the signing.

 

Did New York Executive Order 202.14 Replace Formal Execution Requirements For Wills?

No, the Order, occasioned by the extraordinary circumstances surrounding the then-emerging Covid-19 Pandemic, did not replace the formal execution requirements of EPTL 3-2.1. Rather, it solely authorized the use of audio-visual technology to satisfy the “presence” requirements contained in the statute.

The long established formalities governing the proper execution of a will are set forth in EPTL 3-2.1, and we have written about the requirements to make a valid will in New York, here.  Briefly, the requirements to properly execute a will in New York are that:

  1. the testator must sign the will in the presence of at least two attesting witnesses (or acknowledge testator’s signature to each attesting witness);
  2. the testator must declare to the attesting witnesses that the instrument signed is testator’s last will and testament (the so-called “publication” requirement);
  3. The witnesses, within 30 days, must both attest the testator’s signature was affixed or acknowledged “in their presence”; and
  4. the witnesses, at the request of the testator, must sign their names and affix their addresses at the end of the will (see EPTL 3-2.1[a][2]-[a][4]).

 

New York Remote Will Execution During the Pandemic

New York, recognizing the aversion any close personal interaction during the pandemic, implemented the Order containing the remote witnessing provision.  The Order provided a welcomed respite to in-person execution ceremonies, permitting New York residents to engage in increasingly relevant end-of-life planning in a manner consistent with social distancing guidelines.

According to the Order, the “presence” requirements incident to the act of witnessing can only be “virtually” satisfied provided the following conditions are met:

  1. the testator has to be either personally known to the attesting witnesses ormust present valid photo identification to the witnesses during the video conference;
  2. the video conference must allow for direct interaction between the testator, witnesses, and if applicable, the supervising attorney (no-prerecorded videos); and
  3. the witnesses must receive a legible copy of the signature page(s) the same day the papers are signed.

 

In addition to the foregoing conditions, the Order includes provisions whereby the attesting witnesses may sign the transmitted copy of the signature page(s) and transmit them back to the testator and further provides that the witnesses may repeat the witnessing of the original signature page(s) as of the date of execution provided they are presented with the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony.

The Court noted the importance (and best practice) of executing a self-proving affidavit:

While not required at the time of execution by statute or by the Order, best practice considerations plainly include the execution and annexation to the instrument of a contemporaneous “self-proving affidavit” whereby the attesting witnesses swear to “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” (SCPA 1406).

Insufficiency of Witness Affidavit

The Surrogate’s Court took issue with several aspects of the affidavit from the attesting witnesses to the purported will and found that it did not establish all of the facts necessary to prove the validity of the will’s execution.

Personally Known Or Valid Photo Identification

First, the Surrogate’s Court took issue with the word “acquainted”:

Initially, the affidavit is deficient in that it states that the attesting witnesses were “acquainted” with the testator. In the past, such language has proven adequate for traditional in-person executions (which oftentimes utilize institutional witnesses who have just met the testator, such as law firm employees). Yet the Order specifically requires that the testator either be personally known to the witnesses, or, that the testator display valid photo identification to the witnesses during the ceremony.

Since the term “personally known” obviates the need for the testator to produce any proof of identification to the witnesses whatsoever, it implies a quantum of familiarity between the attesting witnesses and the testator that goes beyond that of “acquaintance.” A mere introduction to a law firm paralegal or so-called “friend of a friend” does not satisfy a standard that allows for the dispensation of confirmatory photo identification. Therefore as the affidavit annexed to the instrument only recites that the witnesses were “acquainted” with the testator and is otherwise silent regarding whether the testator produced valid photo identification during the execution ceremony, it is insufficient to demonstrate compliance with the Order.

Working Audio-Visual Technology

In addition, the New York Surrogate’s Court determined the affidavit is deficient because does not state that the audio-visual technology referenced was in working order and allowed for direct interaction between the testator and the witnesses in real time during the remote will execution.

Legible Copy Of Signature Page

Also, and significantly for the Court, the affidavit does not indicate that a legible copy of the signature page was transmitted to the witnesses on the same day that the witnesses observed the signing. Instead, the affidavit states the decedent “thereafter” scanned and emailed the signature page to the witnesses.

This language was too vague – the affidavit should clearly spell out that the transmittal of the signature pages occurred on the same date that the instrument was signed.

The Court also found it interesting that an original instrument was presented bearing the original signatures of the testator and both attesting witnesses, stating:

Clearly then, the witnesses were, at some point, apparently presented with the original instrument and it was re-signed pursuant to the permissive provisions of the Order. Compliance with the Order requires the presentation to the witnesses of both the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony. The affidavit annexed to the Will does not even address the apparent re-signing of the original by the witnesses.

New York Probate Not Allowed Unless Court Satisfied

The New York SCPA is explicit in that “[b]efore admitting a will to probate the court must inquire particularly into all of the facts and must be satisfied with the genuineness of the will and the validity of its execution” (SCPA 1408).  The Court determined it would be hard pressed to find the offered instrument passed muster in the absence of proof of how such document even came into existence.

While mindful that the overriding intent of the Order was to provide an avenue of relief and accommodation for the bar and public in the midst of a pandemic, a corresponding adaptation of the standards employed by the Court in assessing the validity of such instruments is unnecessary, and the expectation that submission of affidavits establishing strict compliance with the specific strictures of the Order cannot be considered onerous.

The New York Surrogate’s Court held the admission of the offered instrument in abeyance pending review by the Court of supplemental affidavits from the attesting witnesses addressing all of the requirements set forth in the remote witnessing Order, affidavit(s) detailing the apparent re-signing by the witnesses of the testator’s original signature page, including the creation and chain of custody of said original, and the production of all signed counterparts of the offered will instrument.

The Takeaway: make sure that the execution requirements for a valid will in New York are followed strictly, including the affidavits of the witnesses, down to the box they check regarding their relationship to the testator.  This proceeding was uncontested and involved an attorney-prepared will, but the irregularities in the affidavits were enough to give the Surrogate’s Court concerns about the validity of the document.