As some of you have already heard, on March 20, New York Governor Andrew Cuomo signed Executive Order No. 202.7, which will allow “notarial acts” required under New York law to be performed using “audio-video technology” (while not mentioned in the Order, presumably this refers to Skype, Zoom, Face Time or similar technology). The New York Order requires the person signing the document to represent that the person is physically situated in New York, and does not address witnesses acting remotely. It is anticipated that the governor of Massachusetts will soon sign a similar order (if it has not already been signed by the time you read this), addressing remote notarization and witness signatures.
These Executive Orders demonstrate a quick and proactive response to the constraints on mobility due to the current pandemic. Practitioners should be cautioned, however, that the use of the executive power to modify notary and witness requirements is, to our knowledge, unprecedented. Although the power granted to governors in some states is quite broad, we cannot be certain that these orders are valid. If possible, the highest court of the state in which such an executive order is signed should render a declaratory judgment on the matter, to give the public and their advisors complete comfort in relying on the orders. This is particularly true with respect to execution of a last will and testament.