MATTER OF SMITH [29 Misc 3d 832] 833
OPINION OF THE COURT
LEE L. HOLZMAN, J.
In this proceeding to probate a testamentary instrument
dated March 16, 2006, the proponent, a daughter of the decedent
who is the sole beneficiary and nominated executrix under the
instrument, moves for an order dispensing with the SCPA 1404
testimony of a witness who resides in Florida. The decedent’s
distributees are the proponent and two other daughters, one of
whom is under a disability. One of the respondent daughters,
Barbara Smith, opposes the motion. She also settled an order
directing that the deposition be taken by video conference in
Florida and that the proponent pay for the deposition. The
guardian ad litem for the daughter under a disability also op-
poses the motion.
The proponent’s counsel, who is the attorney-drafter of the
instrument and one of the two attesting witnesses, was deposed
pursuant to SCPA 1404. The only other witness to the will, a
former employee of the proponent’s counsel, resides in Florida.
Although for reasons unknown to the proponent’s counsel this
witness has refused to cooperate with him, she told an investiga-
tor hired by the proponent that she would consent to being
deposed in Florida via a video conference.
The proponent originally argued that because one witness
was already deposed and the other witness signed a ‘‘self-
proving affidavit,’’ there is sufficient evidence to admit the will
to probate and, therefore, a commission is unnecessary. None-
theless, the proponent asserts that a commission is acceptable
provided that Barbara Smith arranges the deposition and pays
all costs. The proponent contends that the estate has a modest
value and it would be a hardship for the estate to pay for the