To state the obvious, the coronavirus pandemic has changed many aspects of our lives. Part of that change is a heightened awareness of the fragility of life and the need to plan for the inevitability of death. The circumstances that have led so many to face the need to write or revise existing wills, trusts, and other documents related to the end of life have greatly complicated the creation of those documents. For example, a will execution ceremony under New York law requires the testator and the witnesses to be in each other's physical presence, and notarization of the signatures on a trust document requires the notary to see the creator and the trustee sign. Or at least that was the case before the rise of electronic wills with remote witnessing and remote notarization. Although only a handful of jurisdictions have enacted statutory rules for either or both, the pandemic has led many others, including New York, temporarily to authorize both remote notarization and remote execution of documents requiring witnesses.

In New York, at least, such measures have been routinely extended since they were first put into place in March 2020 by Executive Order 202.14. It is expected that the day will come when these measures will no longer be necessary, but perhaps, unexpectedly, their continuation might be welcome. The convenience of executing documents without leaving home may be too useful to give up.

A year into the pandemic, the New York procedures for will execution are familiar and no doubt widely used. Audio-visual technology may be used to perform the act of witnessing required under EPTL 3-2.1 and EPTL 7-1.17 governing witnessing of a lifetime trust as well as witnessing requirements for health care proxies and statutory gift riders to powers of attorneys under the following conditions:

• The person requesting that his or her signature be witnessed, if not personally known to the witness(es), must present valid photo ID during the video conference, not merely transmit it prior to or after;
• The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if there is one. In other words, 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 30 days after the date of execution.

This procedure substitutes electronic for physical presence and does not require that anyone, other than the testator, have physical contact with the original will. It also requires the electronic transmission to the witnesses of only the signature page for them to sign, and allows, but does not require, the witnesses to affix their signatures to the original signature page. Executing wills and trusts differs from that authorized for remote notarization. On the one hand, Executive Order 202.7 requires the electronic transmission to the notary of the entire document to be notarized and also requires that the person signing the document affirmatively represents that he or she is physically situated in the state of New York. On the other hand, remote witnessing of a will does not require the testator to be physically located in New York.