2017 ORS 113.055¹
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 (Information to devisees, heirs, interested persons, Department of Human Services and Oregon Health Authority) (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]

Notes of Decisions

Will contests are still reviewed de novo despite 1979 amend­ment replacing reference to suit in equity with reference to ac­tion tried without jury. Sanders v. U.S. Na­tional Bank, 71 Or App 674, 694 P2d 548 (1984), Sup Ct review denied

Amend­ment inserting reference to ac­tion tried without jury did not convert formerly equitable suit into ac­tion at law requiring constitu­tional right to jury. Rantru v. Unger, 73 Or App 680, 700 P2d 272 (1985)

1 Legislative Counsel Committee, CHAPTER 113—Initiation of Estate Proceedings, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors113.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 113, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano113.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.