In re the Probate of the Will of Wilkens

16 Misc. 2d 641, 167 N.Y.S.2d 53, 1950 N.Y. Misc. LEXIS 1322

Opinion

Anthony P. Savarese, S.

The items upon which the examination is sought are proper and are allowed. The fact that a party to be examined may be incompetent to testify under section 347 of the Civil Practice Act is not a valid ground for refusing to order an examination (Lemlich v. Lemlich, 266 App. Div. 748). There has been a sufficient showing of special circumstances justifying the examination of the witness Keith. The period of examination will commence three years prior to the date of execution of the propounded instrument and terminate one year thereafter. The persons to be examined will produce, if in their possession or control, all papers enumerated in the notice of motion relevant and pertinent to the matters upon which an examination has been allowed.

Motion granted. Settle order on notice.