New York Will Contests Involve Discovery of Information

There are many types of proceedings that occur relating to a decedent’s estate. One of the most common matters involves the probate of a Last Will and Testament. New York estate lawyers are familiar with the manner in which a Will is presented to the Surrogate’s Court. In the typical case, the original of the Will is filed with the Court along with a death certificate, a petition and other papers. Having a Will admitted to probate simply means that the Will is validated by the Court and its provisions regarding asset distribution and other directions must be followed. At the time probate occurs the Court appoints an estate fiduciary who is typically the Executor nominated in the Will. The New York Probate Lawyer Blog has posted many articles explaining the probate of an estate.

In some situations the probate process turns into a Will Contest. When the situation concerns a contested Will, the typical occurrence is that one or more of the decedent’s next of kin (“distributees”) disputes the validity of the Will. This dispute can be based upon the grounds of undue influence, lack of testamentary capacity or improper execution of the Will.A usual occurrence is that at the beginning of the case the respondent parties who are questioning the authenticity of the Will have the right under Surrogate’s Court Procedure Act (SCPA) 1404 to obtain the sworn testimony from the attorney draftsperson and the attesting witnesses.  The SCPA 1404 examination can also encompass the discovery and review of papers relating to the decedent’s medical issues, financial issues and estate planning matters.

Questions often arise as to the nature of the scope of discovery allowed during the SCPA 1404 examinations. In general, the Courts seem to be rather liberal in allowing a full inquiry as long as the discovery requests appear reasonable and relevant. Once the SCPA 1404 examination is complete, the respondents must file their formal Objections to probate in order for the Will Contest to proceed further. After Objections are filed the respondents/objectants have the right to obtain more discovery regarding the issues presented such as undue influence and lack of testamentary capacity.

Disputes between parties regarding the information that is discoverable happens with frequency.  A case decided by Erie County Surrogate Barbara Howe on July 30, 2015 entitled Matter of Walter involved a controversy regarding witness testimony.  In Walter the respondents had requested SCPA 1404 discovery.  As part of the request, respondents sought to obtain the testimony of the nominated executor.  The nominated executor objected to such request and argued that the SCPA 1404 statutory language only allowed pre-objection testimony of the named executor if the Will contained a no-contest clause. In Walter the named executor argued that since there was no such clause, his testimony could not be obtained until after Objections were filed. When presented with this issue, the Court found that the respondents would be allowed to take the SCPA 1404 testimony of the named executor who the Court found to be a relevant witness.

I have represented many persons in probate matters both contested and uncontested. If you have a question regarding probate or other estate problems, call me now for a free consultation.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Queens, Brooklyn and other counties. If you or someone you know is involved with or has questions about a New York estate or beneficiary designation, please contact me at (212) 355-2575 or email:, for an initial consultation.

Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at You can cancel receiving the newsletter at anytime.

Contact Information