59-2224. Hearings for probate and for determination of validity of spouse's consent; procedure.
59-2224
59-2224. Hearings for probate and for determination of validity of spouse'sconsent; procedure.The hearing of a petition for the probate of a will and the hearing of apetition for the determination that the consent of the spouse to the willis a valid and binding consent shall be separate issues which, in the discretionof the court, may be determined in a consolidated hearing or in separatehearings. On the hearing of a petition for the probate of a will orfor the determination that the consent of a spouse to a will is a validand binding consent, unless it is anuncontested, self-proved will orconsent, the testimony of at leasttwo of thesubscribing witnesses shall be taken in person, by affidavit or bydeposition.The court may waive the requirement of such testimony of such subscribingwitnesses upon a proper showing that such witnesses are unavailable or cannotbe located. Otherwise, the court may admit the testimony of otherwitnesses to prove the capacity of the testator or the spouse and the dueexecution ofthe will or consent and, as evidence of such execution, may admit proof of thehandwriting of the testator or the spouse and of the subscribing witnesses. Anyheir,devisee, or legatee may prosecute or oppose the probate of any will or thedetermination that the consent of the spouse to the will is a valid andbinding consent. Ifthe instrument alleged to be the will is not allowed as the last willand if the estate shouldbe administered, the court shall grant administration to the person orpersons entitled thereto.
History: L. 1939, ch. 180, § 200; L. 1963, ch. 299, § 1; L.1975, ch. 299, § 17; L. 1977, ch. 197, § 2; L. 1981, ch. 228, § 4;L. 1996, ch. 106, § 1; July 1.