SCPA 1405

Question 1

What may be shown by affidavit or competent evidence regarding an attesting witness?

Answer 1

The death, absence, incompetency, or inability to be found or examined due to physical or mental condition

This evidence is relevant for the court’s decision on the necessity of the witness’s testimony.

Question 2

What can the court do when it is satisfied that the testimony of an attesting witness cannot be obtained?

Answer 2

Dispense with the testimony of the attesting witness by decree on probate or order

This can be done in writing or entered in the minutes.

Question 3

Under what condition may a will be admitted to probate when the testimony of an attesting witness is dispensed with?

Answer 3

Upon the testimony of the attesting witness who has been examined

This means additional proof is not required if at least one witness has testified.

Question 4

Fill in the blank: The court may dispense with the testimony of an attesting witness due to their _______.

Answer 4

[death, absence, incompetency, inability to be found, physical or mental condition]

Question 5

True or False: The testimony of an attesting witness is always required for a will to be admitted to probate.

Answer 5

False

The court can dispense with the testimony under certain conditions.

Question 6

What can a court require if an attesting witness is absent from the state?

Answer 6

The court may require the witness’s testimony to be taken by commission upon the demand of any party.

Question 7

What must be shown for a court to require an absent witness’s testimony?

Answer 7

It must be shown that the witness’s testimony can be obtained with reasonable diligence.

Question 8

Fill in the blank: The court may and shall require an absent witness’s testimony to be taken by _______.

Answer 8

[commission]

Question 9

What happens if an attesting witness forgets the occurrence or testifies against the execution of the will?

Answer 9

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.

Question 10

What is required for a will to be admitted to probate if one attesting witness is unavailable?

Answer 10

Testimony of the other witness or witnesses and sufficient other facts to prove the will.

Question 11

True or False: A will can be admitted to probate solely based on the testimony of one attesting witness if another witness has forgotten the occurrence.

Answer 11

True

Question 12

Fill in the blank: A will may be admitted to probate upon the testimony of the _______ witness or witnesses.

Answer 12

[other]

Question 13

What happens if all attesting witnesses to a will are dead or incompetent?

Answer 13

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

This allows for the will to be validated even in the absence of live witnesses.

Question 14

What is required to admit a will to probate if witnesses are absent?

Answer 14

Proof of the handwriting of the testator and of at least one of the attesting witnesses

Additional facts may also be required that are sufficient to prove the will.

Question 15

Fill in the blank: A will may be admitted to probate upon proof of the handwriting of the testator and of at least one of the _______.

Answer 15

attesting witnesses

Question 16

True or False: A will can be admitted to probate if all witnesses are absent and their testimony has been dispensed with.

Answer 16

True

This is contingent on providing sufficient evidence as outlined in the section.

Question 17

What conditions allow a will to be admitted to probate despite absent witnesses?

Answer 17

If all attesting witnesses are dead, incompetent, unable to testify, or absent from the state

Their testimony can be dispensed with under these conditions.