February 12, 2024

In 2021 and 2022, I wrote about Surrogate’s Court decisions that addressed the admission of remotely witnessed wills to probate in New York State.  Since then, Surrogate’s Courts have issued at least two more decisions addressing the validity of remotely witnessed wills.  I now write to provide an update about the validity of remotely witnessed wills, having been involved in two cases that addressed the issue in 2023.

Between April 7, 2020 and June 25, 2021, New York Executive Order 202.14 (the “Executive Order”) permitted “the remote execution of wills” in this State (Matter of Holmgren, 74 Misc3d 917, 918 [Sur Ct, Queens County 2022]).  The Executive Order set forth formalities that must be observed in order to justify the admission of a remotely executed will to probate in New York (id.).  Among those formalities was the requirement that “the testator has to be either personally known to the attesting witnesses or must present valid photo identification to the witnesses during the video conference” (id. at 919).

In Matter of McErlain, the testator executed her will in the presence of two attesting witnesses who participated in the execution ceremony by video conference.  Although the testator did not present photo identification to the attesting witnesses or know them prior to the execution ceremony, the testator executed the will under the supervision of her attorney who had dealt with the testator before, participated in the will execution via videoconference, and introduced the testator to the attesting witnesses.  The testator’s nurse accompanied the testator to the will execution, and introduced the attesting witnesses to the testator.  Based upon the testator’s attorney’s and nurse’s introductions of the testator to the attesting witnesses, among other things, Suffolk County Surrogate Vincent J. Messina, Jr. found that “the remote witnessing [of the propounded will] was in compliance with the” Executive Order (Matter of McErlain, File No. 2023-1157/A, Decision, dated November 13, 2023 [Sur Ct, Suffolk County]).

In Matter of Feldman, the testator – who died a resident of Nassau County, New York, in October 2021 – electronically executed her July 2021 will, while located in the Commonwealth of Maryland (Matter of Feldman, File No. 2022-216, Decision and Order, dated July 7, 2023 [Sur Ct, Nassau County]).  The testator electronically executed her will in the presence of two attesting witnesses, who were Maryland residents, were located in the United States, and participated in the execution ceremony via videoconference (id.).  Although the testator’s execution of the will would not have satisfied the statutory formalities for will executions set forth in either New York Estates, Powers and Trusts Law (“EPTL”) § 3-2.1 or the Executive Order, the testator’s will execution complied with the then-serving Maryland Governor’s order for the electronic signature and remote witnessing of wills (id.).  Consequently, Nassau County Surrogate Margaret C. Reilly admitted the testator’s will to probate under EPTL § 3-5.1, reasoning that the testator executed her will in Maryland, in accordance with the then-effective Maryland law (id.).

While the Executive Order is no longer in effect, and New York’s Legislature has yet to enact legislation authorizing the remote execution and/or witnessing of wills, it appears likely that the Legislature will enact such legislation in the years to come.  It will be interesting to see which formalities the Legislature adopts for the remote execution and/or witnessing of testamentary instruments, and how the Legislature addresses potential conflicts of laws issues that are likely to arise.