Surrogate's Court, Queens County, February 23, 2022

Joseph Rokacz for Philip Holmgren, petitioner.

Before the court is a petition by decedent's brother to probate an attorney-drawn and supervised instrument dated June 22, 2021, purporting to be the last will and testament of the decedent. The sole distributee of the estate, decedent's mother, has executed a waiver and consent in favor of its admission.

While written opinions are generally not warranted in uncontested matters, the within instrument presents the court with its first opportunity to formally address what may likely be a recurrent scenario regarding the adequacy of affidavits submitted with instruments executed under the auspices of Executive Order (A. Cuomo) No. 202.14 (9 NYCRR 8.202.14 [the Order]), which, for the brief period of April 7, 2020, to June 25, 2021, permitted the remote execution of wills.

The Order, occasioned by the extraordinary circumstances surrounding the then-emerging COVID-19 pandemic, did not, as many wrongfully assume, replace the formal execution requirements of EPTL 3-2.1. Rather, it solely authorized the use of audiovisual technology to satisfy the "presence" requirements contained in the statute.

The long established formalities governing the proper execution of a will are set forth in EPTL 3-2.1. Briefly, this statute requires the testator to sign the will in the presence of at least two attesting witnesses (or acknowledge testator's signature to each attesting witness); the testator to declare to the attesting witnesses that the instrument signed is testator's last will and testament (the so-called "publication" requirement); that the witnesses, within 30 days, both attest the testator's signature was affixed or acknowledged "in their presence"; and that the witnesses, at the request of the testator, sign their names and affix their addresses at the end of the will (see EPTL 3-2.1 [a] [2]-[4]).{**74 Misc 3d at 919}

In the pre-pandemic world the above requirements, which contemplated physical presence and in-person interaction, were not considered onerous, much less potentially hazardous to one's health. Indeed will execution ceremonies of the not so distant past were routinely carried out in law office conference rooms, cramped offices, small kitchens, and even hospital wards without the slightest thought given to the proximity of the participants or the potential exposure to viral [*2]disease. Any mention of the adequacy of the air filtration system, of the availability of masks or hand sanitizer, or of a concern regarding a participant's sneeze or cough potentially exposing others present to microbes would have—at a minimum—raised eyebrows. No longer.

With the public's aversion to personal interaction increasing in tandem with its demand for estate planning, the remote witnessing provision provided a welcomed respite to in-person execution ceremonies, permitting New York residents to engage in increasingly relevant end-of-life planning in a manner consistent with social distancing guidelines. Good intentions aside, however, virtual witnessing is not without its own inconveniences.

According to the Order, the "presence" requirements incident to the act of witnessing can only be "virtually" satisfied provided the following conditions are met: (1) 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; (2) the video conference must allow for direct interaction between the testator, witnesses, and, if applicable, the supervising attorney (no prerecorded videos); and (3) the witnesses must receive a legible copy of the signature page(s) the same day the papers are signed.

In addition to the foregoing conditions, the Order 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 they are presented with the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony.

While not required at the time of execution by statute or by the Order, best practice considerations plainly include the execution and annexation to the instrument of a contemporaneous "self-proving affidavit" whereby the attesting witnesses swear {**74 Misc 3d at 920}to "such facts as would if uncontradicted establish 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 under any restraint" (SCPA 1406 [1]).

Although the instrument before the court appears to contain such a contemporaneous affidavit from the attesting witnesses, the court finds that the affidavit fails to establish all of the facts necessary to prove the validity of the will's execution pursuant to the Order under which it was authorized.

Initially, the affidavit is deficient in that it states that the attesting witnesses were "acquainted" with the testator. In the past, such language has proved adequate for traditional in-person executions (which oftentimes utilize institutional witnesses who have just met the testator, such as law firm employees). Yet the Order specifically requires either that the testator be personally known to the witnesses, or that the testator display valid photo identification to the witnesses during the ceremony.

Since the term "personally known" obviates the need for the testator to produce any proof of identification to the witnesses whatsoever, it implies a quantum of familiarity between the attesting witnesses and the testator that goes beyond that of "acquaintance." A mere introduction to a law firm paralegal or so-called "friend of a friend" does not satisfy a standard that allows for [*3]the dispensation of confirmatory photo identification. Therefore as the affidavit annexed to the instrument only recites that the witnesses were "acquainted" with the testator and is otherwise silent regarding whether the testator produced valid photo identification during the execution ceremony, it is insufficient to demonstrate compliance with the Order.

In addition, the affidavit is deficient in that it does not state that the audiovisual technology referenced was in working order and allowed for direct interaction between the testator and the witnesses in real time.

Also, and significantly, the affidavit does not indicate that a legible copy of the signature page was transmitted to the witnesses on the same day that the witnesses observed the signing. Instead, the affidavit nebulously states the decedent "thereafter" scanned and emailed the signature page to the witnesses.

When presented with an affidavit intended to conclusively establish the genuineness of a testamentary instrument, the{**74 Misc 3d at 921} court should not have to resort to surmise or presumptions. The affidavit should clearly spell out that the transmittal of the signature pages occurred on the same date that the instrument was signed.

Of additional interest in this proceeding is the fact that the court has been presented with an original instrument bearing the original signatures of the testator and both attesting witnesses. Clearly then, the witnesses were, at some point, apparently presented with the original instrument and it was re-signed pursuant to the permissive provisions of the Order. Compliance with the Order requires the presentation to the witnesses of both the original signature pages and the electronically witnessed copies within 30 days of the remote execution ceremony. The affidavit annexed to the will does not even address the apparent re-signing of the original by the witnesses.

As the SCPA is explicit in that "[b]efore admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution" (SCPA 1408 [1]), the court would be hard-pressed to find the offered instrument, which bears original ink signatures of the testator and each attesting witness, passed muster in the absence of proof of how such document even came into existence.

Lastly, other facts that have been furnished by petitioner indicate that there are counterparts of the offered instrument that have not been filed with the court. Where, as here, a will is executed in duplicates, all duplicates should be provided to the court, not for the purpose of admitting each separately, but rather to provide assurance that the instrument was not revoked and that each contains the complete will of the testator (see Matter of Lewis, 25 NY3d 456 [2015]; Crossman v Crossman, 95 NY 145 [1884]).

While mindful that the overriding intent of the Order was to provide an avenue of relief and accommodation for the bar and public in the midst of a pandemic, a corresponding adaptation of the standards employed by the court in assessing the validity of such instruments is unnecessary, and the expectation that submission of affidavits establishing strict compliance with the specific strictures of the Order cannot be considered onerous.

Accordingly, the admission of the offered instrument shall be held in abeyance pending review by the court of supplemental{**74 Misc 3d at 922} affidavits from the attesting witnesses addressing all of the requirements set forth in the remote witnessing Order, and an affidavit(s) detailing the apparent re-signing by the witnesses of the testator's original signature page, including the creation and chain [*4]of custody of said original, and the production of all signed counterparts of the offered instrument.