In re the Estate of Keane , 417 N.Y.S.2d 28 ( 1979 )

OPINION OF THE COURT

John D. Bennett, S.

This is an application for probate by a son of the decedent. The petition alleges that a series of attempts have been made to locate the three witnesses to the will. An affidavit of due diligence has shown that all these efforts have proven fruitless. The will itself distributes the estate into three equal parts to the decedent’s children. Pursuant to SCPA 1405 (subd 4): "If all of the attesting witnesses are dead or incompetent or unable to testify by reason of physical or mental condition or are absent from the state and their testimony has been dispensed with as provided in this section 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 and such other facts as would be sufficient to prove the will.”

There is nothing that has been submitted so far which indicates that the petitioner intends to prove the handwriting of at least one of the witnesses and that of the decedent. This will was executed in Massachusetts where it is possible to admit a will to probate without the testimony of any attesting witnesses if all interested persons consent and none of the attesting witnesses are available (Ann. Laws of Mass., ch 192, § 2). The court has taken judicial notice of Massachusetts law, however, the problem here is not a question of the validity of the execution of the will which would be governed by Massachusetts law, but a procedural question, to wit, the proof of the will which is determined by the law of the forum (Matter of Wizelholc, 176 Misc 100). The procedure in this jurisdiction under the present circumstances is clear. In the absence of all three witnesses, if the handwriting of at least one witness and the testatrix cannot be established (SCPA 1405, subd 4) the will must be denied probate and one of the distributees should submit an oath and designation to serve as administrator along with the renunciations of his two siblings. Parenthetically, the result of intestacy will be the same as if the will were admitted to probate since the paper writing offered divides the estate equally among the decedent’s three children.