N.Y. Surrogate's Court Procedure Act § 1405: When court may dispense with testimony of witness 1

§ 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.