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This entry was published on 2014-09-22
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SECTION 1405
When court may dispense with testimony of witness 1
Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 14
§ 1405. When court may dispense with testimony of witness

1. The death, absence from the state or incompetency of an attesting
witness required to be examined as prescribed in this or the preceding
section or the fact that the witness cannot with due diligence be found
within the state or cannot be examined as an attesting witness by reason
of his physical or mental condition may be shown by affidavit or by any
competent evidence and when so shown to its satisfaction, the court may
by the decree on probate or by order either in writing or entered in the
minutes dispense with the testimony of such attesting witness. Where
the testimony of an attesting witness has been dispensed with as
provided in this section and 1 attesting witness has been examined the
will may be admitted to probate upon the testimony of the attesting
witness who has been examined without further or additional proof.

2. Where an attesting witness is absent from the state and it is
shown that his testimony can be obtained with reasonable diligence the
court may and shall upon the demand of any party require his testimony
be taken by commission.

3. Where an attesting witness has forgotten the occurrence or
testifies against the execution of the will and at least 1 other
attesting witness has been examined the will may be admitted to probate
upon the testimony of the other witness or witnesses and such other
facts as would be sufficient to prove the will.

4. If all of the attesting witnesses are dead or incompetent or
unable to testify by reason of physical or mental condition or are
absent from the state and their testimony has been dispensed with as
provided in this section the will may nevertheless be admitted to
probate upon proof of the handwriting of the testator and of at least
one of the attesting witnesses and such other facts as would be
sufficient to prove the will.