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This entry was published on 2014-09-22
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SECTION 1404
Witnesses to be examined; proof required 1
Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 14
§ 1404. Witnesses to be examined; proof required

1. Except as otherwise provided in this article, 2 at least, of the
attesting witnesses must be produced before the court and examined
before a written will is admitted to probate if so many of the witnesses
are within the state and competent and able to testify.

2. Where the will offered for probate is on file in a court or public
office under the laws of which jurisdiction the will cannot be removed
the court may issue a commission to a person authorized to take a
commission under CPLR 3113 or to an attorney and counsellor-at-law of
the state or of the jurisdiction in which the commission is to be taken,
to take the testimony and may admit the will to probate upon proof of
its provisions, of its existence at the time of the death of the
testator and of its due execution. Where the will offered for probate is
brought to the surrogate's court by a representative of a public office
of another jurisdiction, the court may take proof of the will and permit
the representative to return the will to such other jurisdiction. The
decree admitting the will to probate shall set forth the full text of
the will. The proof so taken and the decree admitting the will to
probate shall have the same force and effect as though the will had been
filed or had remained in the court.

3. Before a nuncupative will executed under the provisions of EPTL
3-2.2 is admitted to probate its execution and the tenor thereof must be
proved by at least two witnesses. Before a holographic will made under
the provisions of that section is admitted to probate its execution and
the handwriting of the testator must be proved.

4. In all cases the proofs must be reduced to writing. Any party to
the proceeding, before or after filing objections to the probate of the
will, may examine any or all of the attesting witnesses, the person who
prepared the will, and if the will contains a provision designed to
prevent a disposition or distribution from taking effect in case the
will, or any part thereof, is contested, the nominated executors in the
will and the proponents and, upon application to the court based upon
special circumstances, any person whose examination the court determines
may provide information with respect to the validity of the will that is
of substantial importance or relevance to a decision to file objections
to the will. No person who has been examined as a witness under this
section shall be examined in the same proceeding under any other
provision of law except by direction of the court. The attesting
witnesses, the person who prepared the will, the nominated executors in
the will and the proponents may be examined as to all relevant matters
which may be the basis of objections to the probate of the propounded
instrument. There shall be made available to the party conducting such
examination, all rights granted under article 31 of the civil practice
law and rules with respect to document discovery.

5. Unless the court directs otherwise for good cause shown, the costs
of the examinations conducted pursuant to subdivision 4 of this section
shall be paid as follows:

(a) In the case of examinations conducted before objections are filed,
the testator's estate shall pay the costs of:

(1) the initial production or commission and the examination of (A)
the first two attesting witnesses within the state who are competent and
able to testify who are produced by the proponent, or (B) if no witness
is within the state and competent and able to testify, the witness
without the state who resides closest to the county in which the probate
proceedings are pending and who is competent and able to testify; and

(2) the stenographer and one copy of the transcripts of such
examinations for the court and any guardians ad litem.
The costs of all other examinations, including subsequent examinations
of the witnesses described in subparagraph (1) of this paragraph, shall
be governed by article 31 of the civil practice law and rules.

(b) In the case of examinations conducted after objections are filed,
all costs of such examinations shall be governed by article 31 of the
civil practice law and rules.

(c) All costs of document discovery in connection with such
examinations shall be governed by article 31 of the civil practice law
and rules.

6. Unless the court directs otherwise for good cause shown, if more
than one person shall have been involved in the preparation of the will,
the term "person who prepared the will" shall mean the person so
involved to whom the testator's instructions for preparing the will were
communicated by the testator.