🔑 Sample NY Forms: Applications to Dispense with Testimony of Attesting Witnesses

When a will is not accompanied by a self-proving affidavit, the Surrogate’s Court typically requires proof of due execution. Under SCPA 1405, that proof usually comes from the live testimony of at least one attesting witness. But when such testimony cannot be obtained, the court may dispense with it—not just when the witness is deceased, but also when the witness is absent from the state, incapacitated, or cannot be located despite diligent efforts.

This post provides paid subscribers with access to two sample forms used in a Bronx County probate proceeding. The will had no self-proving affidavit, and both attesting witnesses were deceased. The proponent submitted separate applications under SCPA 1405 for each witness, supported by affidavits and documentary proof of death.

What the Forms Cover

• Statutory Framework: The affidavits are structured under SCPA 1405, which permits the Surrogate’s Court to accept alternate proof of due execution when witness testimony is unavailable.
• Grounds for Dispensing: While these samples deal with witness death, the same procedure applies under SCPA 1405 in other cases—such as absence, disability, or inability to locate.
• Supporting Documentation: Each affidavit includes an attached obituary to establish the reason for unavailability.
• Formal Requirements: The affidavits are properly sworn and notarized in accordance with court expectations.

Access the Sample Forms

Paid Subscribers can download both applications submitted in the same proceeding: