In In re Ryan the petitioner asked the Surrogate’s Court of Broome County to admit a will to probate that was executed under the requirements of special rules that were put into effect to make sure that social distancing requirements where followed.
Requirements for executing a will in New York
In New York, for a will to be valid, it must be executed according to the requirements of New York law. This means that the will must be signed and witnessed.
The testator must sign the will. If the testator is unable to sign the will, the someone else may sign it also long as they sign it at the direction of the testator and in the testator’s conscious presence. EPTL § 3-2.1(a)(2).
There must be at least 2 witnesses that must be present when the testator signs the will, or the testator must acknowledge to the witnesses that they signed the will.
A key to the execution ceremony is “presence.” The witnesses must be able to testify to the validity of the will’s execution by be able to say that they witnessed the testator sign it or that the testator acknowledged in their presence that they signed the will.
If the presence requirement was not satisfied the court would likely decline to admit it to probate.
COVID Executive Order
The statutory presence requirement presented problems when COVID became an issue. Because of the way COVID spread, state officials moved quickly to enact rules designed to slow the spread of COVID.
Pre-COVID, wills were typically signed in small spaces such as conference rooms, dining rooms, and event hospital rooms. In small spaces, it was impossible to maintain a distance of 6’ as suggested by healthcare officials.
As a result, the governor issued a number of executive orders that changed the way legal business was completed. Under New York Executive Order 202.14, modifications to the presence requirement were put in place. Presence was still required. Physical presence was not.
Executive Order 202.14 required that:
- The testator personally knew the attesting witnesses or the testator presented to the witnesses a valid photo identification during the video conference. In other words, if the witness did not know the testator fairly well, the testator would need to present a photo ID to the witness.
- The video conference allowed for direct interaction between the testator and the witnesses. A video conference that allowed for only one way communication would not be acceptable. The witnesses and testator would have to be able to see each other and have a 2-way conversation with each other.
- The witnesses must receive a copy of the signature page on the same day that the testator signed it. Furthermore, the signature page must be legible.
Note that Executive Order 202.14 was not meant to be permanent, but a temporary order until state officials determined that in person execution ceremony could be done safely. The order remained in place from April 7, 2020 to June 25, 2021.
The will of Ryan was executed on June 1, 2020, two days before the testator died on June 3, 2020 and during the time in which Executive Order 202.14 was in effect. Because the testator was in the hospital at the time he executed his will and the hospital did not allow visitors, the testator and the two witnesses were not in the same room during the execution ceremony. Instead, the execution ceremony was done virtually and the witnesses signed an affidavit attesting to the authenticity of the will.
- The execution ceremony was conducted virtually using a cell phone, with a social worker in the testator’s room serving as the videographer
- The witnesses were two staff members of the testator’s attorney
- A copy of the testator’s license had been provided to the witnesses and the testator’s attorney in advance.
- The testator confirmed that document that he was about to sign was his last will and testament
- The testator signed the will while his attorney and the witnesses watched on their computer.
- Immediately after the testator signed the will, the original was delivered to his attorney’s office where his two staff executed the attestation clause and the witness affidavit.
The Surrogate’s Court reviewed the will, the affidavits signed by the witnesses, and the circumstances surrounding the execution of the will and concluded that it completed with New York law, including Executive Order 202.14. The will was admitted to probate.