Why Full Discovery is Required in a New York Will Contest – A Case in Point


Estate planning and creating a Last Will and Testament is important.  However, during the planning process, attention must be given to the eventual probating of the Will.  When a Will is admitted to probate by the Surrogate’s Court, the effect is to validate the terms and provisions in the document.  At that time the executor is granted letters testamentary and can begin the estate settlement process.

The New York estate laws and procedures require that notice of the probate case be provided to the decedent’s heirs at law who are known as distributees.  These persons have a right to object to the probate of the Will.  The New York Probate Lawyer Blog contains many posts with information about probate and many other estate and guardianship issues.

A Will contest is a proceeding that involves extensive estate litigation.  Similar to most types of controversies, the relevant law allows for extensive pre-trial discovery.  Simply put, discovery allows each party to obtain documents and testimony from various sources for the purpose of discovering information and evidence to be potentially presented at a trial or other Court hearing.

Surrogate’s Court Procedure Act section 1404 entitled “Witnesses to be examined; proof required”, along with the general discovery provisions of the Civil Practice Law and Rules, give the parties involved in the case the procedures to obtain needed information.

Generally, the Courts support full and open discovery and afford all litigants the right to pursue this data within the bounds provided by the relevant laws.  Surrogate Judges are reluctant to dismiss Will Contest cases if they feel that discovery has not been properly completed, particularly if there appears to be open questions of fact concerning any of the main issues that arise in a Contested Will matter.  These issues typically are whether a Will was duly executed or the decedent lacked testamentary capacity or if the Will was the subject of undue influence.

A recent Brooklyn estate case decided by Brooklyn Surrogate Margarita Lopez Torres on May 3, 2020 entitled Estate of Brown, provides a good example of the Court’s desire for discovery to be completed before any final judicial determination is made on the merits.

In Brown, the proponent sought to probate a 2010 Will in which the proponent was the primary beneficiary.  Objections to the Will were filed by a beneficiary under a prior Will executed in 2004 in which the objectant was to receive essentially a 50% share of the estate along with the proponent.  The proponent had asked the Court to dismiss the objections and grant the proponent summary judgment.

The evidence submitted on the motion by the proponent was found to be insufficient to grant the relief.  It was noted that the objectant had not yet had an opportunity to take the deposition of the proponent which the Court stated was important regarding the issue of undue influence since the proponent may have exclusive possession and knowledge of facts that could be gained from the proponent’s cross-examination.  Also, while medical records dated in 2012 had been produced, there were no such records provided for 2010 which was the year in which the Will was signed.  The Court noted that the 2012 records presented questions about the decedent’s capacity and that the objectant needed the opportunity to obtain medical records that could shed light on the decedent’s condition in or around 2010 or earlier.  Based upon the Court’s analysis, the proponent’s request to dismiss the objections was denied as premature.

I have represented proponents and objectants in many Will Contest cases.  These matters can be very complicated and representation by an experienced estate lawyer can be essential.  Call Me Now for a free confidential review of your estate case.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  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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