Admission of Remotely Witnessed Will to Probate

January 29, 2021

In an April 2020 post to this Blog entitled “The Remote Witnessing of Estate Planning Documents during the COVID-19 Pandemic,” my colleague Cheryl L. Erato addressed Governor Cuomo’s Executive Order authorizing the remote witnessing of wills.  Since April 2020, trusts and estates practitioners have questioned, from a public-policy perspective, how well the remote witnessing of wills works, and speculated about litigation that is anticipated to arise therefrom.

Until earlier this week, a Surrogate’s Court had not addressed the admission of a remotely witnessed will to probate.  By Decision and Order, dated January 25, 2020, Broome County Surrogate David H. Guy issued what appears to be the first reported New York decision addressing the admission to probate of a remotely witnessed will (see Matter of Ryan, 2021 NY Slip Op 21010 [Sur Ct, Broome County Jan. 25, 2021]).

In Matter of Ryan, the testator’s health quickly took a quick turn for the worse, causing the testator to be admitted to a hospital at a time when COVID-19 restrictions prevented visitors from entering the hospital.  As a result, the testator’s attorney’s office caused the testator’s original will to be delivered, in a sealed envelope, to the testator by a social worker at the hospital.

The testator’s counsel also arranged for the social worker to serve as a “videographer” for the testator’s execution of the will, using a cell phone camera for that purpose.  The testator’s counsel and two staff members from the attorney’s office virtually “‘attended’ and participated in the execution ceremony via a computer [in the attorney’s] office.”  Having previously received a copy of the testator’s driver’s license, the testator’s counsel and the attorney’s staff confirmed the testator’s identity during the execution ceremony.

After the testator opened the sealed envelope containing the will and reviewed the instrument, the testator affirmatively responded that “the instrument he was about to sign was his will,” and that “he wished for [the attorney’s] staff to serve as witnesses to the execution of [the]” will.  The testator signed the will, with the testator’s attorney and his staff watching the testator do so on their office computer.  “The cell phone angle was such that [the testator] could be seen signing the document in front of him.”  Immediately after the testator signed the will, “the original was driven back to [the testator’s attorney’s] office, where [the testator’s attorney’s] two staff executed the attestation clause and the witness affidavit, which had been stapled with the original will in a will cover.”

Relying upon Estates, Powers and Trusts Law (“EPTL”) § 3-2.1, Surrogate Guy found that the execution ceremony summarized above satisfied the statutory formalities for due execution of a will in New York.  The Surrogate reasoned that, although the testator “was not physically present in the same room as the witnesses, [the witnesses] were able to see him execute the will, in real time, using the cell phone camera and the computer.”  The Surrogate further reasoned that, given the COVID-19 restrictions that were in place at the time, the execution ceremony satisfied the “presence requirements” set forth in EPTL § 3-2.1.

Equally important, Surrogate Guy held that the testator’s execution of the will satisfied the provisions contained in the Executive Order authorizing the remote witnessing of wills.  The Surrogate explained that 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.”

While Ryan presents the first published decision in which a Surrogate’s Court addressed the remote witnessing of a will, Ryan certainly will not be the last one.  It will be interesting to see whether Surrogates in counties other than Broome County conclude that similar circumstances satisfy the statutory formalities set forth in EPTL § 3-2.1 and the Executive Order authorizing the remote witnessing of wills.