§ 1404 — Witnesses to be examined; proof required 1

§ 1404. Witnesses to be examined; proof required\n 1. Except as otherwise provided in this article, 2 at least, of the\nattesting witnesses must be produced before the court and examined\nbefore a written will is admitted to probate if so many of the witnesses\nare within the state and competent and able to testify.\n 2. Where the will offered for probate is on file in a court or public\noffice under the laws of which jurisdiction the will cannot be removed\nthe court may issue a commission to a person authorized to take a\ncommission under CPLR 3113 or to an attorney and counsellor-at-law of\nthe state or of the jurisdiction in which the commission is to be taken,\nto take the testimony and may admit the will to probate upon proof of\nits provisions, of its existence at the time of the death of the\ntestator and of its due execution. Where the will offered for probate is\nbrought to the surrogate's court by a representative of a public office\nof another jurisdiction, the court may take proof of the will and permit\nthe representative to return the will to such other jurisdiction. The\ndecree admitting the will to probate shall set forth the full text of\nthe will. The proof so taken and the decree admitting the will to\nprobate shall have the same force and effect as though the will had been\nfiled or had remained in the court.\n 3. Before a nuncupative will executed under the provisions of EPTL\n3-2.2 is admitted to probate its execution and the tenor thereof must be\nproved by at least two witnesses. Before a holographic will made under\nthe provisions of that section is admitted to probate its execution and\nthe handwriting of the testator must be proved.\n 4. In all cases the proofs must be reduced to writing. Any party to\nthe proceeding, before or after filing objections to the probate of the\nwill, may examine any or all of the attesting witnesses, the person who\nprepared the will, and if the will contains a provision designed to\nprevent a disposition or distribution from taking effect in case the\nwill, or any part thereof, is contested, the nominated executors in the\nwill and the proponents and, upon application to the court based upon\nspecial circumstances, any person whose examination the court determines\nmay provide information with respect to the validity of the will that is\nof substantial importance or relevance to a decision to file objections\nto the will. No person who has been examined as a witness under this\nsection shall be examined in the same proceeding under any other\nprovision of law except by direction of the court. The attesting\nwitnesses, the person who prepared the will, the nominated executors in\nthe will and the proponents may be examined as to all relevant matters\nwhich may be the basis of objections to the probate of the propounded\ninstrument. There shall be made available to the party conducting such\nexamination, all rights granted under article 31 of the civil practice\nlaw and rules with respect to document discovery.\n 5. Unless the court directs otherwise for good cause shown, the costs\nof the examinations conducted pursuant to subdivision 4 of this section\nshall be paid as follows:\n (a) In the case of examinations conducted before objections are filed,\nthe testator's estate shall pay the costs of:\n (1) the initial production or commission and the examination of (A)\nthe first two attesting witnesses within the state who are competent and\nable to testify who are produced by the proponent, or (B) if no witness\nis within the state and competent and able to testify, the witness\nwithout the state who resides closest to the county in which the probate\nproceedings are pending and who is competent and able to testify; and\n (2) the stenographer and one copy of the transcripts of such\nexaminations for the court and any guardians ad litem.\nThe costs of all other examinations, including subsequent examinations\nof the witnesses described in subparagraph (1) of this paragraph, shall\nbe governed by article 31 of the civil practice law and rules.\n (b) In the case of examinations conducted after objections are filed,\nall costs of such examinations shall be governed by article 31 of the\ncivil practice law and rules.\n (c) All costs of document discovery in connection with such\nexaminations shall be governed by article 31 of the civil practice law\nand rules.\n 6. Unless the court directs otherwise for good cause shown, if more\nthan one person shall have been involved in the preparation of the will,\nthe term "person who prepared the will" shall mean the person so\ninvolved to whom the testator's instructions for preparing the will were\ncommunicated by the testator.\n