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Did You Know That New York Will Contests Have Limited Discovery Periods

Contesting a Will in New York is a complicated matter.  There are a number of Statutory and Court prescribed rules that control these proceedings.  The New York Probate Lawyer Blog has published numerous articles concerning Will Contests.

When someone is challenging the validity of a Will, essentially they are asserting that a basic requirement of an enforceable Will is lacking.  Many references have been provided in this Blog to Estates, Powers and Trusts Law (EPTL) section 3-2.1 entitled “Execution and attestation of wills; formal requirements”, which sets forth the requirements for executing a Will.  This statute mandates that there be at least two (2) attesting witnesses and that the Will be signed at the end of the document.  One of the main Will Objections that is typically interposed is that the document was not properly executed.  Cases abound where there are issues created when the paper is not signed by the testator in the presence of a witness or the witnesses do not recall whether the testator identified the paper as a Will.

Additional grounds for Objections to a Will include undue influence, fraud, lack of testamentary capacity and coercion.  Sometimes forgery is alleged.  Whatever the reasons are for claiming the Will is invalid, it is important to recognize that most Will Contest cases are determined based upon the information obtained during the document and deposition discovery phase of the case.  During discovery the attesting witnesses and the attorney who drafted the Will and supervised its execution are required to give pre-trial testimony and turn over relevant documents.

An essential part of the discovery process is a Court rule that limits the period of discovery to a period of three years prior to the date of the Will and two years after the Will date or the date of the decedent’s death, whichever is earlier.  This 3/2 rule can be found in the Uniform Surrogate’s Court Rules at Rule 207.27.

The result of this limitation is to focus the parties’ attention on events that occurred during a defined period of time during which events would have actually effected the validity of the Will document.  The rule prevents the parties from seeking discovery of events that are distant in time and would have no impact on the validity of the Will at the time it was signed.

However, notwithstanding the 3/2 rule, the Courts allow an expansion of the time period if the party seeking the expansion can show special circumstances.  The Courts are reluctant to expand the time period unless it appears that there are specific events or a continuous course of conduct that might directly relate to the Will’s viability.

In a recent Manhattan estate case entitled Matter of Estate of Judelson, decided by Manhattan Surrogate Rita Mella on May 24, 2019, the Court refused to expand the discovery period limited by the 3/2 year rule.

The Surrogate determined, among other things, that the reasons presented for the expansion did not provide any connection between the requested discovery and any Objection to the Will.  Thus, the Court found no basis to allow the expansion based upon a request to inquire into the decedent’s alleged probate of a fraudulent Will regarding his pre-deceased spouse.  This issue had no bearing on the case being presented to the Manhattan Surrogate.

I have represented clients in many Will Contest cases and other estate litigation matters.  An estate lawyer is typically familiar with the many different rules and statutes in these cases.  Call me now if you want a free review of your estate or probate case.  We offer reasonable and flexible fees and provide personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including the Bronx and Brooklyn.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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