SIGNING OF WILLS IN NEW YORK DURING COVID-19

On April 7, 2020, in response to the ongoing COVID-19 crisis, New York State Governor Andrew M. Cuomo issued Executive Order No. 202.14. This Executive Order addresses the witnessing of wills during the current pandemic.[1]

Under New York State Estates, Powers and Trusts Law, the person executing his or her will (known as the “testator”) must either sign the will in the presence of at least two witnesses, or acknowledge his or her signature to each witness. Unfortunately, both of these acts require the testator to be in the physical presence of the witnesses, and in the era of social distancing, physical presence is both impractical and potentially dangerous.

Executive Order No. 202.14 modifies these requirements until May 7, 2020, to allow for the witnessing of wills without requiring the testator to be in the physical presence of the witnesses.

Pursuant to the Executive Order, wills may be witnessed using audio-video technology, so long as the following conditions are met (in conjunction with the standard will execution requirements):

1. If the testator and the witnesses are not acquainted, the testator must present valid photo ID to the witnesses during the video conference.
2. Video conferences must allow for direct interaction between the testator and the witnesses (as well as any supervising attorney); the conference must be live and not pre-recorded.
3. On the same date that the testator signs the will, the witnesses must receive a legible copy of the page signed by the testator, by fax or electronic means.
4. The witnesses may sign the faxed or electronically delivered signature page and return the signed page back to the testator.

This Executive Order provides a powerful tool to properly execute wills during these uncertain times. As always, it is prudent to have a licensed attorney supervise the signing of wills, and an attorney may do so by joining in the live audio-video conference.

The attorneys at Capell Barnett Matalon & Schoenfeld LLP are familiar with these rules, and are able to assist our clients with the preparation and signature of estate planning documents as required by law.

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[1]  The Executive order also applies to virtual witnessing of health care proxies, statutory gifts riders, lifetime trusts, recording instruments affecting real property, and disposition of remains.

ATTORNEY ADVERTISING: This memorandum provides general information on legal issues and developments of interest to our clients and friends. It is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters we discuss here. Should you have any questions or wish to discuss any of the issues raised in this memorandum, please call your Capell Barnett Matalon & Schoenfeld LLP contact.