N.Y. Surrogate's Court Procedure Act § 1404: Witnesses to be examined; proof required 1

§ 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.