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Surrogate’s Court considered whether a will was properly executed where the witnesses were not in the presence of the testator when they executed the attestation clauses and the witness affidavits. Matter of William Ryan, 2021 NY Slip Op 21010


In this case, during a 1404 examination of the two execution witnesses, Surrogate’s Court had to determine if the decedent’s will had been properly witnessed given the unusual execution ceremony.  For a will to be valid in New York, it must be properly executed. This means that the will must be signed at the end by the testator or at the direction of the testator in their presence.  It must also be signed by at least two witnesses in the presence of the testator.  Under SCPA § 1404, before a will can be admitted to probate, at least two of the attesting witnesses must appear in court and be questioned by the court.

In Matter of William Ryan the testator was in poor health at the time his will was drafted.  In addition, because of COVID, there were restrictions on gatherings.  As a result, attorneys found themselves conducting business differently in they would under pre-pandemic conditions.  The original plan was for the will to be executed in the parking lot of the office of the attorney who drafted the will.  However, Ryan’s conditioned worsened before that happened, and he was hospitalized.  The hospital had implemented strict rules to minimize the spread of COVID.  As a result, guests were not allowed to visit patients.  In order to execute the will, a hospital social worker had to assist.

The social worker delivered the will to Ryan and was present when he signed it.  The video feature of a cell phone was used along with a computer at the attorney’s office so that the attorney and the witnesses could be “present” when Ryan signed the will.  Immediately after Ryan signed the will, the original was driven back to the attorney’s office where the two witnesses executed the attestation clause and the witness affidavit. The attestation clause and affidavit had been stapled to the original will in a will.

The Surrogate’s Court judge determined that the will was properly executed and admitted it to probate.  The court based its decision on 3 factors.

First, the court concluded that the execution ceremony, though modified, satisfies the statutory presence requirements.  The will was signed at the end by Ryan.  Even though Ryan and the two witnesses were not physically in the same room, using technology, the two witnesses were able to see Ryan sign the will in real time.  While this type of “being present” may not have been acceptable pre-COVID, given the COVID restrictions, the Court found that the statutory presence requirements were satisfied.

Second, the court concluded that the continuous ceremony requirement was satisfied.   Because the signing of the will and the signing of the attestation documents happened shortly after the signing of the will, the court concluded that the two events occurred during a “continuous attestation ceremony. This satisfied the “period of time” during which the “ceremony pr ceremonies” of execution and attestation continue” requirement of the statute. EPLT 3-2.1(b).

Third, the manner of signing the documents was consistent with Governor Cuomo’s Executive Order 202.14 that allowed for remotion execution.  While the Executor Order anticipated that they might be a delay between when a testator signed a will and when the witnesses signed.  The Order allowed for 30 days between the signing of the testator and the witnesses.  In this case, the delay was less than 24 hours.

Putting the Executor Order aside for a moment, note that the court’s examination focused on whether the actions of the parties were sufficient to fulfill the statutory requirements. Because they did, even though they did not follow the precise requirements of the statute, they were sufficient. Thus, rationale of the court can apply to circumstances unrelated to COVID.

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