The New York “3/2 Rule” in Probate Discovery (22 NYCRR 207.27) — and How It Interacts with SCPA 1404
In New York Surrogate’s Court, discovery in a Will contest is not unlimited. Once probate objections are filed, the Uniform Rules impose what practitioners commonly call the “3/2 rule” under 22 NYCRR 207.27.
The rule is meant to keep probate litigation focused and proportional by limiting how far back (and forward) discovery typically reaches—unless there is a strong reason to expand it.
What is the “3/2 Rule” under 22 NYCRR 207.27?
In a contested probate proceeding where objections have been filed, discovery is generally limited to a defined time period:
- Three years before the date of the propounded instrument (the will offered for probate), and
- Two years after the date of the propounded instrument, or up to the date of death, whichever is shorter,
- unless the court finds special circumstances that justify broader discovery.
Practically speaking, the “3/2” shorthand means: three years before the will date + two years after, with the important caveat that death can shorten the post-will portion.
How to Calculate the 3/2 Discovery Window
Start with the date the will was signed (the instrument offered for probate). Then:
- Count back 3 years from that date.
- Count forward 2 years from that date.
- If the decedent died before the two-year mark, the discovery period typically ends at the date of death.
Example
- Will signed: October 31, 2019
- Date of death: March 25, 2020
“Two years after” would extend to October 31, 2021, but the decedent died sooner—so the typical endpoint becomes March 25, 2020.
Examples: What You Can Obtain Within The 3-2 Rule Probate
Within the allowed timeframe, the court will typically permit discovery that is reasonably related to the issues in a will contest—such as due execution, testamentary capacity, undue influence, and fraud.
Below are practical examples of what is often requested and produced within the 3/2 window.
A) Medical and capacity-related evidence
- Hospital and physician records during the relevant period
- Cognitive assessments, dementia workups, neurological records
- Medication lists (especially psychoactive medications)
- Nursing home / assisted living records, care plans, and progress notes
- Home health aide notes and agency records
- Incident reports (falls, strokes, episodes of confusion)
B) Attorney-drafter and execution-related evidence
- The attorney’s file related to the will (to the extent discoverable)
- Drafts of the will and draft comparison history (where it exists)
- Appointment logs and meeting dates
- Correspondence or communications about instructions and changes
- Execution-related records: who attended, where signing occurred, and how it was supervised
C) Undue influence and fraud evidence
- Communications between the decedent and key beneficiaries (texts, emails, letters)
- Evidence of isolation or gatekeeping (who controlled access, visitation patterns)
- Evidence showing who arranged meetings, transportation, or attorney contact
- Evidence of dependency (care arrangements, power dynamics, control of daily living)
D) Financial evidence tied to motive or coercion
- Bank statements during the relevant period
- Transfers, wire activity, unexplained withdrawals, or sudden changes in spending
- Evidence of who had access to accounts or assisted with finances
- Payments to caregivers or family members
- Records of asset changes close in time to the will (e.g., account changes, unusual transactions)
What Requests Are Commonly Challenged As Outside The 3/2 Window?
Common examples that frequently draw objections include:
- Demands for records from many years (or decades) before the will date without a clear link to the issues
- Broad “all documents relating to…” demands spanning a lifetime
- Post-death discovery that does not connect to a proper probate issue
- Discovery aimed at unrelated family disputes or long-term grievances that do not bear on will validity
When Can Discovery Expand Beyond The 3/2 Period?
The rule allows broader discovery if there are special circumstances. This is not automatic. Courts generally expect a factual explanation for why older (or later) records are truly necessary.
Examples that may support expansion include:
- A credible claim of an extended pattern of coercion or manipulation that began before the 3-year lookback
- A documented course of conduct involving fraud that spans a longer period
- A medical or cognitive decline that clearly predates the three-year window, where earlier records are needed to understand capacity at execution
- A specific asset or transaction central to the dispute that predates the window and cannot be fairly evaluated without older documentation
Where Scpa 1404 Fits In: Pre-Objection Discovery In Probate
SCPA 1404 is typically used before objections are filed. It allows a potential objectant to conduct limited discovery aimed at determining whether objections are warranted.
While procedures and scope vary by case, 1404 is commonly used to examine:
- The attesting witnesses (the people who witnessed the will signing)
- The attorney-drafter (the lawyer who prepared the will)
And it often includes targeted requests for documents related to:
- The circumstances of execution
- The decedent’s instructions and interactions with counsel
- Red flags suggesting capacity issues, coercion, or suspicious involvement by a beneficiary
Examples: what you can obtain in SCPA 1404 discovery
What you can obtain from the attorney-drafter / file (where obtainable):
- Will drafts and revision history
- Notes reflecting testamentary instructions
- Communications concerning scheduling, who was involved, and who attended meetings
- Billing entries that show timing and frequency of contacts
From the attesting witnesses:
- What they observed about the decedent’s awareness and demeanor
- Who was present at execution and who spoke for the decedent
- Whether the signing appeared supervised and voluntary
From the proponent/executor (in limited situations):
- Information about possession of the original will
- Execution logistics and relevant interactions around signing and death
- Targeted issues directly tied to the probate contest
Does The 3/2 Rule Apply Only To Scpa 1404 Exams?
Not necessarily. Although the regulation speaks in terms of examinations before trial, Surrogate’s Courts have applied the concept broadly in contested probate discovery.
For example, Matter of Baird (Sur Ct, Orange County 2023) explains that the 3/2 rule “is not limited to the SCPA § 1404 examination” and that it “applies to all forms of discovery demands.”
That matters in real life because parties often serve wide-ranging document demands, interrogatories, subpoenas, or deposition notices seeking materials far outside the timeline.
FAQ: The 3/2 Rule, SCPA 1404, and Probate Discovery in New York
Does the “3/2 rule” mean I automatically get five years of records?
Not always. It’s often described as a five-year framework (3 years before + 2 years after), but the “two years after” portion is typically cut off by the date of death if the decedent dies sooner.
The anchor date is usually the date of the will offered for probate (the propounded instrument). The lookback begins three years before that date.
Generally, no. SCPA 1404 is the primary mechanism for pre-objection discovery. Once objections are filed and the case becomes a contested probate proceeding, the 3/2 rule becomes a common battleground for limiting scope.
SCPA 1404 is designed to let a potential objectant gather enough information—through limited examinations and targeted document requests—to decide whether filing objections is appropriate.
Commonly, the attesting witnesses and the attorney-drafter. In certain situations (and depending on the circumstances of the case), additional examinations may be sought, but courts typically keep 1404 focused.
Not automatically. Requests often focus on materials relevant to execution, instructions, capacity indicators, and the surrounding circumstances. Privilege issues can arise, and disputes may require court guidance.
“Special circumstances” generally means a specific, fact-based reason—such as a documented pattern of undue influence over a longer period, a continuing course of fraudulent conduct, or a medical decline that clearly predates the standard window and is necessary to evaluate capacity at execution.
Sometimes, but it’s commonly challenged. Post-death materials may be limited unless they directly relate to a probate issue (for example, custody of the original will or circumstances relevant to the objections). Otherwise, post-death discovery is often viewed as outside the core probate discovery window.
Not necessarily. It is a strong default limit in contested probate proceedings, but courts can expand discovery where justified and can also narrow discovery that is overbroad even within the window.
Key takeaway
- SCPA 1404 is often the starting point: limited, targeted discovery to assess whether a will contest is justified.
- 22 NYCRR 207.27 (“3/2 rule”) usually governs once objections are filed by restricting discovery to a defined timeframe—unless special circumstances justify more.
How RK Law Can Help with 3-2 Rule Probate Discovery in New York
If you’re involved in a will contest—or considering one—discovery strategy can shape the entire case. The right approach can help you obtain meaningful evidence efficiently, or prevent overbroad demands from driving up costs and delaying resolution.
For guidance on probate objections, SCPA 1404 discovery, and enforcing or expanding the 3/2 rule, contact RK Law to discuss your matter.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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