SURROGATE’S COURT PROVIDES GUIDANCE ON PROVING THE VALIDITY OF A REMOTELY WITNESSED WILL

March 07, 2022

In January 2021, I wrote about Broome County Surrogate David H. Guy’s decision in Matter of Ryan, in which Surrogate Guy addressed the admission of a remotely witnessed will to probate in New York State.  Recently, in Matter of Holmgren, Queens County Surrogate Peter J. Kelly wrote a decision addressing the information that a self-proving affidavit must contain in order to prove the validity of a remotely executed will.  I now write about Surrogate Kelly’s decision in Holmgren, as a follow up to my prior post concerning Ryan.

From April 7, 2020 to June 25, 2021, New York Executive Order 202.14 (the “Executive Order”) authorized “the remote execution of wills” in this State (see Matter of Holmgren, File No. 2021-4954, 2022 NY Slip Op 22049 [Sur Ct, Queens County Feb. 23, 2022]).  The Executive Order – which the then-Governor implemented in response to the COVID-19 pandemic – permitted “the use of audio-visual technology to satisfy the ‘presence’ requirements contained in” Estates, Powers and Trusts Law § 3-2.1 (which governs the due execution of wills) (see id.).

Under the Executive Order, “the ‘presence’ requirements incident to the act of witnessing [a will] can be ‘virtually’ satisfied provided [that] the following conditions are met”: (a) “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”; (b) “the video conference must allow for direct interaction between the testator, witnesses, and if applicable, the supervising attorney (no-prerecorded videos)”; and (c) “the witnesses must receive a legible copy of the signature page(s) the same day the papers are signed” (see id.).  The Executive Order also “includes provisions whereby the attesting witnesses may sign the transmitted copy of the signature page(s) and transmit them back to the testator and further provides that the witnesses may repeat the witnessing of the original signature page(s) as of the date of execution provided [that] they are presented with the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony” (see id.).

To ensure that the validity of a will, whether executed in-person or by virtual means, can be proved, “best practice” dictates that the attesting witnesses sign a self-proving affidavit (see id.).  In the self-proving affidavit, the attesting witnesses “swear to ‘such facts as would . . . establish the genuineness of the will, [and] the validity of its execution,” among other things (see id.).

In Holmgren, the petitioner offered a remotely executed will for probate, submitting (a) a waiver and consent signed by the testator’s sole distributee, and (b) a self-proving affidavit signed by the attesting witnesses to the propounded instrument’s execution (see id.).  Surrogate Kelly declined to admit the propounded instrument to probate based upon the self-proving affidavit that the petitioner submitted (see id.).  The Surrogate explained that the affidavit failed to establish compliance with the Executive Order’s requirements that: (a) the testator was personally known to the attesting witnesses, or had presented valid photo identification to them, during the execution ceremony; (b) the audio-visual technology used during the execution ceremony “was in working order and allowed for direct interaction between the testator and the witnesses in real time”; and (c) “a legible copy of the signature page was transmitted to the witnesses on the same day that the witnesses observed the signing” of the propounded instrument (see id.).

Surrogate Kelly also noted that the petitioner had submitted to the court “an original instrument bearing the original signatures of the testator and both attesting witnesses,” meaning that “the witnesses were, at some point, apparently presented with the original instrument” (see id.).  This was noteworthy because, while the Executive Order does not require the attesting witnesses of a remotely executed will to sign both the transmitted copies of the signature pages and the original signature pages, it does mandate that, when the attesting witnesses do so, they must be “presented with the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony” (see id.).  As a result, the Surrogate concluded that the self-proving affidavit on file with the Court had to establish “the presentation to the witnesses of both the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony” – which the affidavit failed to do (see id.).

Finally, Surrogate Kelly referenced “other facts” suggesting that “there are counterparts of the [propounded] instrument that have not been filed with the Court” (see id.).  Such “other facts” required the petitioner to present all duplicate originals of the propounded will, “to provide assurance that the instrument was not revoked” (see id.).

Although Surrogate Kelly did not deny probate to the propounded will in Holmgren, the Surrogate did require the petitioner to provide a new self-proving affidavit establishing compliance with the Executive Order’s requirements (see id.).  Holmgren demonstrates that, to the extent that a testator relied upon the Executive Order in remotely executing a will, the self-proving affidavit filed to establish the instrument’s validity must show that the remote execution process complied with the Executive Order’s requirements.  Absent such a showing in a self-proving affidavit, a remotely executed will may not be admitted to probate, even in an uncontested proceeding.