June 20, 2024


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New York Surrogate’s Court Addresses Adequacy Of Witness Affidavit With Remote Execution of Wills


In Issue of Holmgren, a February 23, 2022 viewpoint, the New York Surrogate’s Court docket, Queens County, dealt with the adequacy of affidavits submitted with a purported will executed under the auspices of New York Executive Purchase 202.14 (the Order), which, for the brief interval of April 7, 2020 to June 25, 2021, permitted the distant execution of wills.

The Facts of Make a difference of Holmgren

Just before the Surrogate’s Court docket was a petition by decedent’s brother to probate an attorney-drawn and supervised purported will dated June 22, 2021. The sole distributee of the estate, decedent’s mom, has executed a waiver and consent in favor of its admission.

The matter was uncontested, but the Surrogate’s Court docket took the possibility to address the adequacy of affidavits submitted with devices executed under the New York Buy allowing the distant execution of wills.

In this article, the affidavit from the attesting witnesses:

  • States that the attesting witnesses had been “acquainted” with the testator
  • Does not point out that the audio-visible technological know-how referenced was in working purchase and permitted for immediate interaction among the testator and the witnesses in true time.
  • does not point out that a legible copy of the signature web site was transmitted to the witnesses on the identical day that the witnesses observed the signing.


Did New York Executive Get 202.14 Change Official Execution Needs For Wills?

No, the Purchase, occasioned by the remarkable circumstances encompassing the then-rising Covid-19 Pandemic, did not replace the official execution necessities of EPTL 3-2.1. Instead, it solely licensed the use of audio-visible technological innovation to satisfy the “presence” specifications contained in the statute.

The extensive set up formalities governing the proper execution of a will are established forth in EPTL 3-2.1, and we have composed about the necessities to make a legitimate will in New York, here.  Briefly, the prerequisites to correctly execute a will in New York are that:

  1. the testator must indicator the will in the presence of at the very least two attesting witnesses (or accept testator’s signature to each attesting witness)
  2. the testator have to declare to the attesting witnesses that the instrument signed is testator’s very last will and testomony (the so-referred to as “publication” need)
  3. The witnesses, within 30 times, will have to both equally attest the testator’s signature was affixed or acknowledged “in their presence” and
  4. the witnesses, at the ask for of the testator, ought to signal their names and affix their addresses at the finish of the will (see EPTL 3-2.1[a][2]-[a][4]).


New York Remote Will Execution For the duration of the Pandemic

New York, recognizing the aversion any near own interaction through the pandemic, applied the Purchase containing the distant witnessing provision.  The Order delivered a welcomed respite to in-man or woman execution ceremonies, permitting New York people to have interaction in ever more appropriate conclude-of-everyday living scheduling in a fashion constant with social distancing guidelines.

According to the Purchase, the “presence” necessities incident to the act of witnessing can only be “virtually” content presented the next ailments are fulfilled:

  1. the testator has to be both individually recognised to the attesting witnesses orneed to current legitimate photo identification to the witnesses all through the video clip conference
  2. the video conference must allow for direct conversation between the testator, witnesses, and if applicable, the supervising legal professional (no-prerecorded films) and
  3. the witnesses will have to obtain a legible duplicate of the signature site(s) the very same working day the papers are signed.


In addition to the foregoing situations, the Buy incorporates provisions whereby the attesting witnesses may perhaps sign the transmitted copy of the signature site(s) and transmit them back to the testator and even further offers that the witnesses may repeat the witnessing of the first signature website page(s) as of the date of execution provided they are presented with the authentic signature pages and the electronically witnessed copies inside 30 times of the remote execution ceremony.

The Court docket mentioned the worth (and greatest practice) of executing a self-proving affidavit:

While not demanded at the time of execution by statute or by the Order, most effective exercise considerations plainly incorporate the execution and annexation to the instrument of a contemporaneous “self-proving affidavit” whereby the attesting witnesses swear to “such information as would if uncontradicted create the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not beneath any restraint” (SCPA 1406).

Insufficiency of Witness Affidavit

The Surrogate’s Court took challenge with several aspects of the affidavit from the attesting witnesses to the purported will and identified that it did not establish all of the points required to confirm the validity of the will’s execution.

Individually Known Or Valid Picture Identification

1st, the Surrogate’s Courtroom took situation with the phrase “acquainted”:

To begin with, the affidavit is deficient in that it states that the attesting witnesses had been “acquainted” with the testator. In the previous, these types of language has confirmed adequate for traditional in-individual executions (which frequently employ institutional witnesses who have just met the testator, this sort of as regulation agency employees). Yet the Order specifically requires that the testator both be personally acknowledged to the witnesses, or, that the testator screen legitimate photo identification to the witnesses throughout the ceremony.

Considering that the time period “personally known” obviates the want for the testator to produce any evidence of identification to the witnesses in anyway, it indicates a quantum of familiarity between the attesting witnesses and the testator that goes beyond that of “acquaintance.” A mere introduction to a legislation agency paralegal or so-named “friend of a friend” does not satisfy a conventional that allows for the dispensation of confirmatory picture identification. For that reason as the affidavit annexed to the instrument only recites that the witnesses were being “acquainted” with the testator and is usually silent about regardless of whether the testator manufactured legitimate photograph identification during the execution ceremony, it is insufficient to demonstrate compliance with the Get.

Doing work Audio-Visual Technology

In addition, the New York Surrogate’s Court established the affidavit is deficient because does not state that the audio-visual engineering referenced was in doing the job get and permitted for direct interaction concerning the testator and the witnesses in serious time throughout the remote will execution.

Legible Duplicate Of Signature Page

Also, and noticeably for the Courtroom, the affidavit does not show that a legible duplicate of the signature website page was transmitted to the witnesses on the similar working day that the witnesses observed the signing. Alternatively, the affidavit states the decedent “thereafter” scanned and emailed the signature site to the witnesses.

This language was way too vague – the affidavit must plainly spell out that the transmittal of the signature web pages occurred on the exact same day that the instrument was signed.

The Courtroom also uncovered it fascinating that an primary instrument was offered bearing the primary signatures of the testator and both attesting witnesses, stating:

Obviously then, the witnesses have been, at some point, evidently offered with the first instrument and it was re-signed pursuant to the permissive provisions of the Buy. Compliance with the Buy necessitates the presentation to the witnesses of equally the original signature internet pages and the electronically witnessed copies in 30 times of the distant execution ceremony. The affidavit annexed to the Will does not even deal with the evident re-signing of the unique by the witnesses.

New York Probate Not Permitted Except if Court docket Content

The New York SCPA is explicit in that “[b]efore admitting a will to probate the court need to inquire particularly into all of the points and ought to be satisfied with the genuineness of the will and the validity of its execution” (SCPA 1408).  The Courtroom identified it would be really hard pressed to come across the available instrument handed muster in the absence of proof of how this kind of document even arrived into existence.

Though aware that the overriding intent of the Order was to present an avenue of aid and accommodation for the bar and public in the midst of a pandemic, a corresponding adaptation of the criteria used by the Court docket in examining the validity of these types of devices is unwanted, and the expectation that submission of affidavits creating demanding compliance with the precise strictures of the Buy are not able to be regarded onerous.

The New York Surrogate’s Courtroom held the admission of the supplied instrument in abeyance pending critique by the Courtroom of supplemental affidavits from the attesting witnesses addressing all of the needs established forth in the distant witnessing Order, affidavit(s) detailing the evident re-signing by the witnesses of the testator’s primary signature website page, including the creation and chain of custody of mentioned authentic, and the manufacturing of all signed counterparts of the supplied will instrument.

The Takeaway: make sure that the execution necessities for a valid will in New York are adopted strictly, including the affidavits of the witnesses, down to the box they test concerning their romance to the testator.  This proceeding was uncontested and included an attorney-prepared will, but the irregularities in the affidavits have been plenty of to give the Surrogate’s Court fears about the validity of the document.


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