New York Consolidated Laws, Surrogate's Court Procedure Act - SCP § 1408. Probate not allowed unless court satisfied




1. Before admitting a will to probate the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution.  The court may, however, accept an affidavit of an attesting witness in the manner and under the circumstances prescribed in this article.

2. If it appears that the will was duly executed and that the testator at the time of executing it was in all respects competent to make a will and not under restraint it must be admitted to probate as a will valid to pass real and personal property, unless otherwise provided by the decree and the will and decree shall be recorded.

3. Where the petition alleges that the testator has disappeared under circumstances sufficient to justify the belief he is dead the court shall take proof of the facts.  If it appears that the testator is dead the court may make a decree determining such fact and admitting the will to probate.  The decree shall be binding in its effect upon the interests in the estate of persons under disability and of future contingent interests of persons not in being as well as the interests of adult competent persons.


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