Matter of Ryan - 2021 NY Slip Op 21010, 71 Misc. 3d 217, 140 N.Y.S.3d 682 (Sur. Ct.)

Rule:

The procedure for the execution and attestation of a will need not be followed in the precise order set forth in EPTL 3-2.1, so long as all the requisite formalities are observed in a period of time which represents a continuous attestation ceremony. EPTL 3-2.1(b).

Facts:

William Ryan died on June 3, 2020. A verified petition for probate of an instrument purporting to be his Last Will and Testament, was filed by Patricia Picalila, the named executor. The Court set and presided over an SCPA 1404 examination of the witnesses to the will.  The testimony at the 1404 examination revealed that the decedent communicated with attorney Peter Gorton, now counsel for the petitioner, and staff in his office, about the preparation of his will. The original plan was to have the will signed in the parking lot of his lawyer’s office but the will execution plans were accordingly modified. The execution of the will happened in the hospital, and since Covid-19 restrictions precluded outside visitors from entering, a social worker was arranged by the lawyer’s staff to be with Mr. Ryan. The cell phone angle could be seen Mr. Ryan signing the document in front of him while his lawyer and the staff, as the witnesses, watched on their computer. Immediately after the execution of the will, the original was driven back to the lawyer’s office, where his two staff executed the attestation clause and the witness affidavit, which had been stapled with the original will in a will cover.

Issue:

Was the execution of the will satisfy its validity?

Answer:

Yes.

Conclusion:

The Court found that the execution ceremony satisfied the requirements of EPTL 3-2.1. The will was signed at the end by Mr. Ryan. While Mr. Ryan was not physically present in the same room as the witnesses, they were able to see him execute the will, in real-time, using the cell phone camera and the computer. Given the Covid-19 restrictions, the Court finds that this satisfies the presence requirements of EPTL 3-2.1(a)(2). The Court ruled that the execution of this will has been duly established and otherwise being satisfied with its validity, and no objections having been received to the petition, the will is admitted to probate and letters testamentary will be issued to the petitioner.