In re the Estate of Zeh Sannuto

This is an application by the proponent for an order directing the contestant, the husband of the decedent, to submit to an examination before trial on the question of the mental capacity of the testatrix. Proponent has the burden of establishing mental capacity and the examination should be allowed if it is necessary and material. Ordinarily, a proponent sustains this burden through the testimony of the subscribing witnesses, and unless special circumstances are shown warranting an examination, I would be inclined to refuse the order.

*348Here, the moving papers allege that oral and written transactions were had between the decedent and her husband at and shortly before the execution of the will. Proof of their nature and the manner of conducting them may tend to establish the mental capacity of the testatrix. The examination will be allowed but limited to transactions bearing upon her mental capacity, had between the contestant and the decedent at and for a period of two months prior to the time of the execution of the will. The time and place of the examination will be fixed by the surrogate upon the settlement of the order.