NY SCPA 1406: Proof of Will by Affidavit of Attesting Witness Out of Court

§ 1406. Proof of will by affidavit of attesting witness out of court.

1. In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless:

(a) a party entitled to process in the proceeding raises objection thereto or

(b) for any other reason the court may require that the witness or witnesses be produced and examined.

2. For the purposes of making the affidavit referred to in this section, after the death of the testator, the exhibition to the witnesses of a court-certified photographic reproduction of the will shall be deemed equivalent to the exhibition to them of the original will.

Rule Summary

SCPA § 1406 permits probate proof of a will by affidavit of one or more attesting witnesses, taken outside of court, and directs that such sworn statements must be accepted by the Surrogate’s Court as though taken before the court, unless a statutory or discretionary exception applies.

Who May Request the Affidavit

An attesting witness may make the affidavit:

• at the request of the testator, or
• after death, at the request of:
  • the executor named in the will
  • the proponent
  • the attorney for the proponent
  • any person interested

Required Contents of the Affidavit

The affidavit must state facts which, if uncontradicted, establish:

1. the genuineness of the will,
2. the validity of its execution, and
3. that the testator was competent and not under any restraint at the time of execution.

Mandatory Acceptance — With Exceptions

The affidavit must be accepted by the court as though taken before the court unless:

• (a) a party entitled to process raises an objection, or
• (b) the court, for any reason, requires the witness or witnesses to be produced and examined.

Photographic Copy After Death

After the testator’s death, a court‑certified photographic reproduction of the will is statutorily deemed equivalent to the original will for purposes of preparing the affidavit.

Practice Notes

• SCPA § 1406 provides an evidentiary alternative, not a conclusive presumption of validity.
• Any objection by a party entitled to process defeats affidavit‑only proof.
• The Surrogate retains independent discretion to require live testimony even absent objection.
• Section 1406 applies “[i]n addition to other procedures” for probate proof and does not displace them.