113.055
Testimony of attesting witnesses to will. (1) Upon the ex parte review of a petition for the
probate of a will, an affidavit of an attesting witness may be used instead of
the personal presence of the witness in court. The witness may give evidence of
the execution of the will by attaching the affidavit to the will or to a
photographic or other facsimile copy of the will and may identify the signature
of the testator and witnesses to the will by use of the will or the copy. The
affidavit shall be received in evidence by the court and have the same weight
as to matters contained in the affidavit as if the testimony were given by the
witness in open court. The affidavit of the attesting witness may be made at or
after the time of execution of the will.
(2) However, upon
motion of any person interested in the estate filed within 30 days from the
date the personal representative first delivers or mails information under ORS
113.145 (1), the court may require that the witness making the affidavit be
brought before the court. If the witness is outside the reach of a subpoena,
the court may order that the deposition of the witness be taken.
(3) If the
evidence of none of the attesting witnesses is available, the court may allow
proof of the will by testimony or other evidence that the signature of the
testator or at least one of the witnesses is genuine.
(4) In the event
of contest of the will or of probate of the will in solemn form, proof of any
facts shall be made in the same manner as in an action tried without a jury. [1969
c.591 §85; 1979 c.284 §105; 2017 c.169 §11]
113.060 [Amended by 1963 c.271 §1;
repealed by 1969 c.591 §305]
Notes of Decisions
Sanders v. United States Nat'l Bank, 694 P.2d 548 (Or. Ct. App. 1985).
· cites it 20× “At the outset, we are faced with respondents' contention that, although will contests historically have been reviewed de novo, the legislature changed our scope of review when it amended ORS 113.055(4) in 1979. Or. Laws 1979, ch.”
Williams v. Overton, 709 P.2d 1115 (Or. Ct. App. 1985).
“We have decided that, notwithstanding the amendment of ORS 113.055(4) by Oregon Laws 1979, chapter 284, sections 104 and 105, we continue to exercise de novo review in will contests.”
McGilvray v. Martin, 618 P.2d 1287 (Or. Ct. App. 1980).
· cites it 3× “ORS 113.055(2). Before the date for hearing those motions, the personal representative gave notice of intent to move on that date to have the will admitted in solemn form.”
Hurd v. Mosby, 615 P.2d 1115 (Or. Ct. App. 1980).
· cites it 2× “Former ORS 113.055(4). 1 The probate court found that testatrix had sufficient testamentary capacity.”
Rantru v. Unger, 700 P.2d 272 (Or. Ct. App. 1985).
“Contestant bases his claim of right to a jury trial on a 1979 legislative change in the language of ORS 113.055(4). Or Laws 1979, ch 284, § 105.”
— Or. Rev. Stat. § 113.055(2) — 1 case
McGilvray v. Martin, 618 P.2d 1287 (Or. Ct. App. 1980).
“ORS 113.055(2). Before the date for hearing those motions, the personal representative gave notice of intent to move on that date to have the will admitted in solemn form.”
— Or. Rev. Stat. § 113.055(4) — 5 cases
Sanders v. United States Nat'l Bank, 694 P.2d 548 (Or. Ct. App. 1985).
“At the outset, we are faced with respondents' contention that, although will contests historically have been reviewed de novo, the legislature changed our scope of review when it amended ORS 113.055(4) in 1979. Or. Laws 1979, ch.”
Williams v. Overton, 709 P.2d 1115 (Or. Ct. App. 1985).
“We have decided that, notwithstanding the amendment of ORS 113.055(4) by Oregon Laws 1979, chapter 284, sections 104 and 105, we continue to exercise de novo review in will contests.”
Hurd v. Mosby, 615 P.2d 1115 (Or. Ct. App. 1980).
“Former ORS 113.055(4). 1 The probate court found that testatrix had sufficient testamentary capacity.”
McGilvray v. Martin, 618 P.2d 1287 (Or. Ct. App. 1980).
“ORS 113.055(2). Before the date for hearing those motions, the personal representative gave notice of intent to move on that date to have the will admitted in solemn form.”
Rantru v. Unger, 700 P.2d 272 (Or. Ct. App. 1985).
“Contestant bases his claim of right to a jury trial on a 1979 legislative change in the language of ORS 113.055(4). Or Laws 1979, ch 284, § 105.”
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