Offers Solutions to Execution of Legal Documents, Including Wills, During Pandemic

Gov. Andrew Cuomo signed Executive Order 202.14 on April 7, 2020, allowing for witness signatures required on certain legal documents to be conducted using audio-video technology when specific conditions are met. The relevant provisions remain in effect until May 7, 2020 and pertain to documents created under certain enumerated sections of the Estates, Powers and Trusts Law, the Public Health Law, the Real Property Law and the General Obligations Law.

The specific conditions set forth in the Executive Order for conducting a signing using virtual witnesses include:

• The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo identification to the witness(es) during the video conference, not merely transmit it prior to or after the conference;
• The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
• The witnesses must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
• The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
• The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty (30) days after the date of execution.

The ability to utilize AV technology for witnessing documents applies to the execution of wills, health care proxies, directions for disposition of remains, all documents that are witnessed under Article 9 of the Real Property Law, the statutory gifts rider to powers of attorney and trust agreements that are not acknowledged. Individuals should not attempt to use these mechanisms without an attorney.

The change allows attorneys to continue to meet the emergency needs of clients who have been prevented from meeting in person to execute these important documents. Physicians and other health care workers, as well as compromised individuals suffering from chronic conditions, have resorted to creative options over the last few weeks including meetings in parks, in driveways and other outdoor sites with efforts to avoid personal contact and attempts to safeguard against contamination through the use of gloves, masks, and disinfectant sprays.

The use of remote witnessing also provides great relief to seniors effectively trapped in senior housing, assisted living and nursing home facilities for their safety. They can now attend to getting their affairs in order and update their estate planning documents, a priority for many in light of the pandemic.

Attorneys must be mindful of the relevant statutes and the specific conditions imposed by the applicable Executive Order provisions. The new provision regarding the use of remote witnessing closely mirrors the requirements for remote notarization provided in Executive Order 202.7.