New York § 1405 When court may dispense with testimony of witness 1

New York Statutes

§ 1405 — When court may dispense with testimony of witness 1

New York § 1405

Law SCPSurrogate's Court Procedure

Art. 14Probate Proceedings; Construction of Wills; Right of Election

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Bluebook

N.Y. Surrogate's Court Procedure § 1405 (2026).

Text

§ 1405. When court may dispense with testimony of witness\n  1.  The death, absence from the state or incompetency of an attesting\nwitness required to be examined as prescribed in this or the preceding\nsection or the fact that the witness cannot with due diligence be found\nwithin the state or cannot be examined as an attesting witness by reason\nof his physical or mental condition may be shown by affidavit or by any\ncompetent evidence and when so shown to its satisfaction, the court may\nby the decree on probate or by order either in writing or entered in the\nminutes dispense with the testimony of such attesting witness.  Where\nthe testimony of an attesting witness has been dispensed with as\nprovided in this section and 1 attesting witness has been examined the\nwill may be admitted

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§ 1405. When court may dispense with testimony of witness\n 1. The death, absence from the state or incompetency of an attesting\nwitness required to be examined as prescribed in this or the preceding\nsection or the fact that the witness cannot with due diligence be found\nwithin the state or cannot be examined as an attesting witness by reason\nof his physical or mental condition may be shown by affidavit or by any\ncompetent evidence and when so shown to its satisfaction, the court may\nby the decree on probate or by order either in writing or entered in the\nminutes dispense with the testimony of such attesting witness. Where\nthe testimony of an attesting witness has been dispensed with as\nprovided in this section and 1 attesting witness has been examined the\nwill may be admitted to probate upon the testimony of the attesting\nwitness who has been examined without further or additional proof.\n 2. Where an attesting witness is absent from the state and it is\nshown that his testimony can be obtained with reasonable diligence the\ncourt may and shall upon the demand of any party require his testimony\nbe taken by commission.\n 3. Where an attesting witness has forgotten the occurrence or\ntestifies against the execution of the will and at least 1 other\nattesting witness has been examined the will may be admitted to probate\nupon the testimony of the other witness or witnesses and such other\nfacts as would be sufficient to prove the will.\n 4. If all of the attesting witnesses are dead or incompetent or\nunable to testify by reason of physical or mental condition or are\nabsent from the state and their testimony has been dispensed with as\nprovided in this section the will may nevertheless be admitted to\nprobate upon proof of the handwriting of the testator and of at least\none of the attesting witnesses and such other facts as would be\nsufficient to prove the will.\n