22 Jun Court Dispenses With Aide’s Further Testimony Based on Her Mental Condition
Manhattan Surrogate Nora Anderson was recently faced with a situation where a home health aide was one of the witnesses to a Will and was called upon to give testimony under SCPA 1404. The aide was unable to complete the examination due to some kind of physical or mental problem. Luckily for the proponent of the will the court found that the proponent amply met her burden of proving the will was duly executed and decedent had testamentary capacity, thus, as satisfied the instrument was genuine, validly executed by the competent decedent in spite of the witness being unable to complete the examination. The overwhelming majority of wills are not contested and the witnesses rarely need to appear in person to give testimony. In almost every contested Will however the witnesses are required to give testimony under oath. While it is not always easy or convenient competent counsel will try to use witnesses who will be reliable and believable witnesses in the event they are called upon to testify. The success or failure of the will may turn on the ability of the witnesses to testify when called upon
Matter of Estate of Warren