Learn About Limitations To Discovery In New York Will Contests

The filing of a Will Contest with the Surrogate’s Court brings to mind melodramatic stories of family intrigue and deception that are played out in movies, novels and other media outlets.  In reality, Contests regarding a Will in New York are rather common occurrences that are subject to strict statutory and procedural guidelines.

When a person dies and leaves a Will, the document must be offered for probate.  This means that the validity of the Will is not achieved until the Surrogate admits the Will to probate.  A probate proceeding involves the notification of the decedent’s next of kin and other interested parties who are the ones who have the right to challenge a Will.  The New York Probate Lawyer Blog has published numerous articles about Wills and probate.  The basic grounds upon which a Will is challenged are lack of due execution, lack of testamentary capacity, undue influence and fraud.  Sometimes an allegation may be made that a Will has a forged signature.

The Objectants to a Will, as well as the proponents, engage in a lengthy period of discovery that is meant to allow the parties to ferret out facts to support their positions.  This discovery process includes deposition testimony of various witnesses including the attesting witnesses to the Will and the attorney who drafted the Will.  Also, various documents can be obtained and reviewed including the decedent’s medical and financial records.

While estate litigation typically involves liberal discovery, the discovery period in a Will contest is limited to a period encompassing three years prior to the date of the Will and two years after its date or the date of the decedent’s death, whichever is shorter.  This restriction is contained in a Court rule at 22 NYCRR207.27.

The presence of the rule provides a structure to contested Will cases and prevents discovery that could be burdensome and improper.  However, the Court has discretion to expand the time frame of the so-called “3-2 rule” if it finds special circumstances.  Such special circumstances must show that there are actual facts relating to the validity of the Will that may tend to indicate some wrongful course of conduct or undue influence or scheme that would justify a broader inquiry.   It is not easy to demonstrate special circumstances.

In a recent decision in a Brooklyn estate case, a request for expanding the 3-2 rule was denied.  In Will of Gennarelli, decided by Brooklyn Surrogate Magarita Lopez Torres on March 12, 2019, the  Objectants sought an expansion of the period to four years before the Will was signed.  The Objectants asserted that during the earlier one year period the decedent had signed a different Will and had also executed a power of attorney in favor to of the attorney who drafted the Will.  The Objectants claimed that the attorney was somehow an advocate for the charity who ultimately inherited the bulk of the decedent’s estate in the propounded instrument.


The Court refused to expand the discovery period because the Objectants did not provide any factual basis for the claims they asserted.

I have represented clients in many Will Contest cases.  These proceedings are normally very complicated and an estate lawyer can be helpful in dealing with the issues and procedures involved.  Call me now if you have any questions concerning probate or a contested Will or Trust.  We provide a free initial consultation and reasonable and flexible fee arrangements.

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 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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