New York last will and testament failed to meet COVID-related will execution requirements. In re Holmgren (N.Y. Surr. Ct. 2022)

In In re Holmgren the petitioner, Philip Holmgren, submitted his sister’s will for probate. Even though the will was not contested, because of the novel circumstances surrounding the execution of he will, the Surrogate’s Court, Queens County issued a written opinion as to whether a will that was executed under the temporary COVID-related procedures was legally sufficient.

Requirements for executing a will in New York

For a will to be valid in New York, the law requires that it must be executed in a specific way.

The will must be signed at the end by the testator, or at the direction of the testator and in their presence.
The will must be witnessed by at least 2 people
The testator must sign the will in the presence of the 2 witnesses. Or, the testator must acknowledged to each of the witnesses that they did sign the will or that it was signed at their direction. EPTL § 3-2.1(a)(2).
The testator must declare to the witnesses that the document signed is their last will and testament
The two witnesses must also sign the will in the presence of the testator.

A critical part of the requirements is that the witnesses and the testators must be in the same room—they must be physically in each other’s presence. This is to help prevent fraud. If the validity of the will is challenged, the witnesses must be able to testify that they saw the testator sign it.

If a will is not witnessed as required, it is not likely to be admitted to probate. The only exceptions to these requirements are if the will is nuncupative (unwritten) or holographic (handwritten and unwitnessed). EPTL § 3-2.2

COVID Changes

Pre-COVID, will execution ceremonies were typically held in small spaces such law office conference rooms, at a dining or kitchen table, or hospital rooms. Because of concerns related to the spread of COVID and the necessity of social distancing, the New York governor issued New York Executive Order 202.14. The order permitted the remote execution of wills. In other words, physical “presence” was not required.

While physical presence was not required, presence was still required. Presence could be achieved virtually through video conferencing. The presence requirement was fulfilled if all three of the following requirements are met:

The testator personally knew the attesting witnesses or the testator presented to the witnesses a valid photo identification during the video conference
The video conference allowed for direct interaction between the testator and the witnesses
The witnesses must receive a clear copy of the signature page or pages on the same day they are signed.

The order remained in place for little over a year, from April 7, 2020 to June 25, 2021.

Holmgren will

The will of Holmgren was executed on June 22, 2021—during the time that Executive Order 202.14 was in place. The testator and the witnesses were not in the same room during the execution ceremony. Instead, the witnesses signed an affidavit attesting to the authenticity of the will.

While it initially may seem as if this would have been sufficient to meet the requirements of the Executive Order, the Surrogate’s Court concluded that it was not. The court found that the affidavit failed to establish all of the facts necessary to prove that that will was valid.

Specifically, the affidavit did not state that the witnesses personally knew the decedent. Instead, it stated that they were acquaintances. The court interpreted the requirement of the Executive Order that stated required that he witnesses and testator personally know each other to mean that they must be more than acquaintances.

Another issue was that the affidavit did not indicated that the audio-visual technology was in working order and allowed for interaction between the witnesses and the testator. Further, the affidavit does not state that a legible copy of the will was received by the witnesses on the same day that they witnessed the testator signing the will.

Thus, the court found that the affidavit failed to establish all of the necessary facts required by Executive Order No. 202.14 to prove the validity of the will’s execution.

Note that this does not mean that the will would not be admitted to probate. The court will hold off on making a decision until it reviews supplemental affidavits from the attesting witnesses.