New York Will Contests Require Discovery of Information

Probating a Will in New York is usually not a contentious process. The original Will is filed with the Court and typically the person named in the Will as the Executor prepares and files a Probate Petition. When a Will is admitted to probate, the Court issues Letters Testamentary to the petitioner. This document provides the executor with the authority to administer the decedent’s estate.

As discussed in prior posts in the New York Probate Lawyer Blog, all of the decedent’s next of kin (“distributees”) must be given notice of the probate proceeding. Each distributee has a right to object to the Will. The procedures involved with Will Objections necessitate that all of the parties engage in a discovery process so that the Court can be presented with facts regarding the validity of the Will.

The discovery of facts is allowed by Surrogate’s Court Procedure Act (SCPA) Section 1404 which allows a potential Objectant to obtain the testimony of the attesting witnesses and the attorney-draftsperson before having to file Objections. A recent case decided by Brooklyn Surrogate Margarita Lopez Torres on January 4, 2017 entitled Will of Pungello, reflects the need for discovery. In Pungello, neither the petitioner nor Objectant engaged in any significant discovery such as taking depositions of Will witnesses or obtaining documents that may shed light on the Will’s validity. Objections had been filed alleging that the Will should be denied probate due to lack of proper execution, lack of testamentary capacity and the use of fraud, coercion and undue influence in creating the Will.

Although each of the parties asked the Court to rule summarily in their favor, the Court refused to do so. Instead, the Court found that the parties’ applications were not supported by sufficient facts that were obtained through discovery. Therefore, the Court ordered the respondent-Objectant to complete discovery within 90 days.

Discovery in a Will contest can be quite extensive. Each party is entitled to subpoena the decedent’s financial and medical records. Additionally, depositions can be taken of any and all persons who may have information regarding the Will execution or the decedent’s capacity to sign a Will. Also, inquiry can be made regarding the circumstances surrounding the Will preparation and signing to determine whether duress or undue influence was a factor that might require a Will to be denied probate.

I have represented many individuals in Will Contest cases and have been involved with discovery. Discovery is an important aspect in Estate Litigation since it provides an opportunity to learn about the facts that exist which may have a bearing on the probate issue. If you have a question regarding a Will Contest or probate, call me now for a free review.

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.  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.

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