2006 New York Code - Witnesses To Be Examined; Proof Required



 
  § 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. 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.

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