## Facts

- William Ryan was hospitalized in June 2020 and died on June 3, 2020.
- Ryan communicated by telephone with attorney Peter A. Gorton and his staff to prepare a will due to pandemic restrictions.
- Ryan stated he was unmarried, had surviving siblings, intended to benefit his sister and Patricia Picalila equally, and intentionally excluded his brother.
- A will dated June 1, 2020 was prepared and sent for execution; in-person execution at counsel’s office was abandoned after Ryan’s hospital admission and visitor restrictions.
- A hospital social worker received the original will in a sealed envelope, brought it to Ryan, and stayed in the room to facilitate execution.
- Using a smartphone, the social worker established a real-time audio-visual connection between Ryan and Gorton’s office, where two office staff served as attesting witnesses.
- Ryan opened the envelope, reviewed the document, confirmed it was his will, and signed it while the attorney and witnesses observed the signing on live video.
- The signed will was returned to counsel’s office, and the two witnesses then signed the attestation clause and witness affidavit.
- Picalila petitioned for probate on August 11, 2020; citations issued to three distributees.
- The court conducted an SCPA 1404 examination of the attesting witnesses; distributees who had appeared later defaulted, and no objections were filed by the court-ordered deadline.

## Issues

1. Whether the June 1, 2020 instrument was duly executed under EPTL 3-2.1 when the testator signed in a hospital room and the attorney and witnesses observed via live audio-visual technology.
2. Whether the execution complied with the conditions for remote witnessing authorized by the Governor’s COVID-19 emergency executive orders.
3. Whether the proof adduced at the SCPA 1404 examination established due execution and supported admission to probate notwithstanding the absence of objections.

## Decision

- The court admitted the June 1, 2020 will to probate.
- It found the will was executed in compliance with EPTL 3-2.1 as temporarily modified by the applicable COVID-19 executive order permitting remote witnessing.
- It relied on uncontroverted testimony from the SCPA 1404 examination establishing the execution procedure, Ryan’s intent, and the witnesses’ contemporaneous observation of signing through live video.

## Legal Principles

- A Surrogate’s Court must independently determine due execution before admitting a will to probate, even when no objections are filed.
- EPTL 3-2.1 requires a signed instrument and attestation by at least two witnesses who observe the signing or receive an acknowledgment, subject to lawful temporary modifications.
- During the COVID-19 emergency period, remote will-execution procedures using real-time audio-visual communication may satisfy witnessing/presence requirements when performed consistent with the executive order’s conditions.
- Testimonial proof taken at an SCPA 1404 examination may establish due execution, capacity-related facts, and the mechanics of an atypical execution ceremony.

## Conclusion

The court upheld and probated a hospital-executed will witnessed through contemporaneous two-way video, concluding that the execution satisfied New York’s statutory will formalities as modified by the COVID-19 emergency remote-witnessing order and was supported by uncontroverted SCPA 1404 testimony.


Matter of Ryan, 71 Misc. 3d 217 (Sur. Ct. Broome Cnty. 2021)