With the current COVID-19 pandemic, questions have arisen regarding how people can safely execute Wills and other documents that require witnesses. Yesterday, by Executive Order 202.14, Governor Cuomo expressly authorized Wills, Trusts, Health Care Proxies, and Statutory Gifts Riders for Powers of Attorney to be witnessed remotely by virtual means. The Executive Order is in effect until May 7, 2020. Before this Executive Order, New York generally did not allow remote witnessing.
Turning to Wills, even with this Executive Order in place, it is important to note that the basic requirements of the Wills statute still apply. New York's Wills statute provides two options for executing Wills: either (i) the testator signs in the presence of two witnesses or (ii) the testator acknowledges his or her signature (which he or she previously signed) to two witnesses, either together or separately.
The Executive Order serves to override the "presence" requirement. With the Executive Order, the act of witnessing can now be performed remotely by virtual means, provided that the following requirements are met:
- The testator, if not personally known to the witnesses, must present valid photo ID to the witnesses during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the testator and the witnesses, and the supervising attorney, if applicable (e.g., no pre-recorded videos of the testator signing);
- The witnesses must receive a legible copy of the signature pages, which may be transmitted via fax or electronic means, on the same date that the testator signs the Will;
- The witnesses may sign the transmitted copy of the Will's signature pages and transmit the same back to the testator; and
- The witnesses may repeat the witnessing of the original signature pages as of the date of execution provided the witnesses receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.
Finally, it should be noted that a notary is NOT required to make a valid Will in New York. Only two witnesses are required. A notary is only required to make a Will self-proving, which is highly recommended, but can be done at any time, even after the testator’s death. For time-sensitive Will signings, the emphasis can be on finding witnesses, not necessarily a notary. As we wrote about here, the witnesses can now have their signatures on a self-proving affidavit notarized remotely.
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