The New York Probate process has been the subject of numerous posts in this blog. A Last Will that is prepared by a person must be admitted to probate or validated by the Surrogate’s Court so that the provisions of the Will become effective. The decedent’s distributes or next of kin must receive notice of the probate proceeding and they have a right to contest the Will. Usually, the distributees receive a paper called a Citation, which is like a summons, that advises them as to the date when the probate proceeding is to appear on the Court calendar. At that time, the distributees can file objections to the Will or ask for preliminary discovery that is allowed by Surrogate’s Court Procedure Act (“SCPA”) Section 1404.
There are many specific rules and procedures that apply to the process of contesting a Will. Some of these requirements have been the subject of recent Surrogate’s Court decisions. In Estate of Basil Constant, decided on June 30, 2014, Bronx Surrogate Nelida Malave-Gonzalez reviewed an application to expand what is known as the “3/2” rule. This rule is contained in section 207.27 of the New York Uniform Rules for Surrogate’s Court and provides that in connection with an examination before trial (i.e. discovery) such examination is limited to a period of time that is three years before the date of the Will and two years thereafter or the decedent’s date of death, whichever is shorter. While the examination period can be extended by Court Order, the Court needs to find special circumstances to expand the time periods. In Constant the Court did not allow an expansion of the time periods to allow an inquiry about an earlier Will that the decedent allegedly had made.