Section 1405. When court may dispense with testimony of witness 1  


Latest version.
  • The death, absence from the state or incompetency of an attesting
      witness required to be examined as prescribed in this or  the  preceding
      section  or the fact that the witness cannot with due diligence be found
      within the state or cannot be examined as an attesting witness by reason
      of his physical or mental condition may be shown by affidavit or by  any
      competent  evidence and when so shown to its satisfaction, the court may
      by the decree on probate or by order either in writing or entered in the
      minutes dispense with the testimony of such attesting  witness.    Where
      the  testimony  of  an  attesting  witness  has  been  dispensed with as
      provided in this section and 1 attesting witness has been  examined  the
      will  may  be  admitted  to  probate upon the testimony of the attesting
      witness who has been examined without further or additional proof.
        2.  Where an attesting witness is absent from  the  state  and  it  is
      shown  that  his testimony can be obtained with reasonable diligence the
      court may and shall upon the demand of any party require  his  testimony
      be taken by commission.
        3.    Where  an  attesting  witness  has  forgotten  the occurrence or
      testifies against the execution  of  the  will  and  at  least  1  other
      attesting  witness has been examined 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.
        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.