New York Will Contests Allow Discovery of Information

In most instances the filing of a Last Will for probate is a straight forward process.  The New York Probate Lawyer Blog has posted many articles regarding the probate of a Will. The typical persons who petition the Court in these proceedings are close relatives such as a spouse or children.  Moreover, it is rather common that the Will beneficiaries are the same close relatives and that all of these individuals receive benefits under the Will provisions.

For example, a familiar scenario is a Last Will in which the decedent leaves his entire estate to his spouse if the spouse is living and if the spouse is not alive, then equally to his children or descendants. 

There are times, however, when the terms of the Will are such that a Will Contest is a possibility. A child or a spouse may be entirely disinherited or his beneficial interest is limited by the Will terms. In these cases the spouse or children may be entitled to a larger share of the decedent’s estate if there is no Will and decedent is found to have died intestate.

An interesting aspect of Will Contests in New York is that the estate laws and procedures allow a prospective Objectant to obtain a great amount of discovery prior to the actual filing of formal objections to a Will.

Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required” allows an interested person the right to obtain the pre-trial testimony of the attesting witnesses to the Will as well as the attorney who drafted the Will. In addition to taking the deposition of these individuals, SCPA 1404 provides that the potential Objectant can obtain discovery of documents and papers from these persons as well as third parties. Thus, documents such as the decedent’s bank records and medical and health records can be reviewed during this discovery process.

The goal in conducting this review is to decide whether or not there exists a reasonable basis to actually file with the Court Objections to the Will.  It is only when formal objections are filed that a probate proceeding is actually contested.

A recent case decided on October 18, 2016 by Nassau County Surrogate Margaret C. Reilly, entitled Probate Proceeding, Will of Smith, exemplifies the Court’s preference to allow a potential Objectant to conduct SCPA 1404 discovery.  In Smith, the person who petitioned the Court for probate sought to obtain an Order from the Court to stop a respondent from conducting the discovery.  After reviewing the facts of the case and the terms of the Will, the Court determined that the potential Objectant had a pecuniary interest that could possibly be benefited if the Will was denied probate.  As a result the Surrogate allowed the discovery process to continue.

I have represented many individuals in connection with Will Contests and estate litigation.   Call me now for a free review of your probate or estate administration issue.

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 including New York and Queens 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.


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