Matter of Ryan

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[*1] Matter of Ryan 2021 NY Slip Op 21010 Decided on January 25, 2021 Surrogate's Court, Broome County Guy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on January 25, 2021
Surrogate's Court, Broome County

Matter of William Ryan, aka William E. Ryan, Deceased.


Peter A. Gorton, Esq. of Lachman & Gorton Law Office
David H. Guy, J.

William Ryan died on June 3, 2020. A verified petition for probate of an instrument purporting to be his Last Will and Testament, dated June 1, 2020, was filed by Patricia Picalila, the named executor, on August 11, 2020. A citation was issued to decedent's three distributees, returnable before the Court on September 14, 2020. Appearing on that date were counsel for the proposed executor and two of decedent's distributees. The Court set and presided over an SCPA 1404 examination of the witnesses to the will on October 13, 2020. The distributees who had appeared at the return date on the citation defaulted in appearance at the 1404 examination. An Order was issued by the Court directing any objections be filed by October 30, 2020. None were received.

The testimony at the 1404 examination revealed that decedent communicated with attorney Peter Gorton, now counsel for petitioner, and staff in his office, about the preparation of his will. The communication was telephonic due to Covid-19 pandemic restrictions then and still in place. In the discussions with Mr. Gorton and his staff in advance of the drafting of the will, Mr. Ryan expressed that he was single, had a surviving brother and sister, and wanted his sister and petitioner to be sole and equal residuary beneficiaries. He was specifically asked about his decision not to provide for his brother in his will and confirmed that was his decision. Mr. Ryan was sent a draft of the will by Mr. Gorton's office.

Mr. Gorton and his office knew at the time the will preparation was initiated by the decedent that he was ill. The original plan was to have the will signed in the parking lot of Mr. Gorton's office. The office had done several wills executions that way since the Covid-19 restrictions had been put in place. Before arrangements were made to have Mr. Ryan come back to the office and execute the Will in the parking lot, his heath took a turn for the worse and he was admitted to Wilson Hospital in Johnson City. The will execution plans were accordingly modified.

Covid-19 restrictions precluded outside visitors from entering Wilson Hospital at that time. Diane Nickerson, one of the staff in Mr. Gorton's office, who also served as a witness to the will, arranged for a social worker at the hospital to be with Mr. Ryan for the execution of the will. The original will was delivered in a sealed envelope to Mr. Ryan's social worker at the [*2]hospital. The social worker then delivered the will to Mr. Ryan in his room and remained with him at its execution, serving as "videographer" by utilizing a cell phone. Mr. Gorton and two of his staff "attended" and participated in the execution ceremony via a computer in his office in Endicott. Mr. Ryan opened the sealed envelope containing the original will and reviewed the will with Mr. Gorton. A copy of Mr. Ryan's driver's license had been provided in advance to Mr. Goton's office, allowing Mr. Gorton and his staff to identify Mr. Ryan.

Mr. Ryan was asked by Mr. Gorton if the instrument he was about to sign was his will and responded affirmatively. Mr. Ryan was also asked if he wished Mr. Gorton's staff to serve as witnesses to the execution of his will, which he also affirmed. Mr. Ryan signed the will, while Mr. Gorton and his staff watched on their computer. The cell phone angle was such that Mr. Ryan could be seen signing the document in front of him.

Immediately after Mr. Ryan executed the will, the original was driven back to Mr. Gorton'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.

The Court finds that this execution ceremony satisfies 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). Mr. Ryan had declared the document to be his will and asked the attending witnesses to serve as such. The witnesses attested to Mr. Ryan's signature on the same day, shortly after he signed it. The procedure for the execution and attestation of a will need not be followed in the precise order set forth in the statute, so long as all the requisite formalities are observed in a period of time which, in the Surrogate's view, represents a continuous attestation ceremony. EPLT 3-2.1(b). The Court finds that to be the case here.

On April 7, 2020, Governor Cuomo issued Executive Order 202.14 which, among other things, provides for "remote execution" of wills. Mr. Gorton was admittedly not familiar with this Executive Order when Mr. Ryan's will was executed. The Executive Order anticipates that witnesses may sign an electronically transmitted copy of the signature page of the will and may, but are not required to, sign the original signature page of the will, if received within 30 days of its signature by the testator. The execution ceremony coordinated by attorney Gorton more than satisfies the provisions for virtual execution set forth in EO 202.14. Mr. Ryan's will would be admissible to probate pursuant to terms of that Executive Order, even if the Court had not found that the ceremony also satisfied the statutory requirements of EPTL 3-2.1.

The Court being satisfied that the execution of this will has been duly established and otherwise being satisfied of 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.

This Decision constitutes the Order of the Court.

Dated: January 25, 2021

Hon. David H. Guy


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