Will Contests in New York are part of a probate proceeding. When a Last Will is filed for probate, official notice must be given to the decedent’s distributees (next of kin). The distributees have a right to contest the Will. In the event the Will is found to be invalid the distributees would inherit the estate pursuant to the laws of intestacy.
The New York Probate Lawyer Blog contains numerous articles concerning the discovery process in contested probate proceedings. Surrogate’s Court Procedure Act (SCPA) Section 1404 entitled “Witnesses to be examined; proof required” contains provisions that allow prospective Objectants to obtain documents and testimonial discovery before having to file formal Will Objections.
A recent case decided by Brooklyn Surrogate Margarita Lopez Torres dated May 26, 2017 entitled Will of Dziubkowski, reflects a number of aspects involved in contested Will discovery. In Dziubkowski, the Objectant first sought SCPA 1404 discovery and took the deposition of the attesting witnesses to the Will. One of the issues in the motion presented to the Court was a request by the Objectant that the Proponent pay the cost for the Court Reporter for examination of the witnesses. The Surrogate ordered the Proponent to pay these costs since SCPA 1404 required that such costs be paid by the testator’s estate.
Another aspect of the Court’s decision related to demands by the Objectant for medical records regarding the decedent. Any request for medical information typically requires that the medical provider be given HIPAA authorizations to release the medical information which would otherwise be private. Usually, a Proponent receives appointment as a Preliminary Executor. The Preliminary Executor has the authority to sign the HIPAA authorization, which can then be submitted to the decedent’s medical providers along with a certified copy of the Preliminary Letters Testamentary and the decedent’s death certificate.
Objectants to a Will want to obtain the decedent’s medical information to investigate whether the decedent had testamentary capacity or was subject to undue influence. In the Dziubkowski case, the Court directed the Proponent to provide to the Objectant HIPAA authorizations that were properly executed along with the Preliminary Letters certificate and a death certificate.
Utilizing the various methods of discovery in a Contest case is important. In addition to medical records, the decedent’s financial records can be subpoenaed. Also, third party witnesses can be subpoenaed to give testimony regarding various issues such as due execution, testamentary capacity and undue influence.
I have represented many persons in Surrogate’s Court Will Contest cases. The matters are usually very complicated and the assistance of experienced legal counsel can be essential. If you have any questions regarding Probate or Will Contests, please 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 including Nassau and Suffolk 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: email@example.com, for an initial consultation.