New York Will Contests Allow Discovery Under SCPA 1404

New York estate litigation may involve many different types of issues. An estate fiduciary such as an executor or administrator may discover and obtain possession of the decedent’s property by commencing proceedings under Surrogate’s Court Procedure Act (SCPA) Section 2103.

However, as New York Probate Lawyers know, one of the most common areas of Surrogate’s Court disputes involves contesting a Will. The basic requirements for a Will execution are found in Estates, Powers and Trusts Law (EPTL) Section 3-2.1 which is entitled “Execution and attestation of Wills; formal requirements”. As discussed in earlier posts in this Blog, such requirements include that the testator sign in the presence of the attesting witnesses or that he acknowledges his signature.When an interested party such as a decedent’s next of kin is considering a Will contest, SCPA section 1404 allows such party to obtain discovery of the attesting witnesses and the person who drafted the Will before formal objections need to be filed. The discovery that is allowed includes the deposition of such witnesses as well as document discovery.

Pursuant to the Surrogate’s Court rules, the period of time that is allowed for discovery is the 3 years prior to the execution of the Will and 2 years thereafter or to the decedent’s date of death, whichever is shorter. With regard to the parameters as to the type of information that may be investigated, generally most items relating to the decedent’s personal and financial affairs, particularly estate planning information, is discoverable. A recent case decided by Manhattan Surrogate Rita Mella on October 16, 2014 entitled Will of Young addressed some of the guidelines for the items that were allowed to be discovered. In Young the Court was presented with a dispute between parties concerning items that had been demanded for review. Among other things, the Court allowed the discovery of papers such as the decedent’s medical records, papers concerning the decedent’s estate planning, financial records and asset transfers. The potential objectants were also allowed to obtain HIPAA authorizations so that they could obtain the decedent’s medical records. However, the Court did not allow discovery of items that related to occurrences outside of the 3 year/2 year parameter or papers relating to the current administration of the decedent’s estate.

I have represented many individuals with regard to SCPA 1404 examinations and Will contests. These cases can be very complicated. Will contests involve a number of issues which center around the proper execution of the Will, whether the decedent had testamentary capacity to execute a Will and whether the Will was a product of undue influence or duress.

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 Brooklyn  and Bronx 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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