Discovery Before Filing Objections to a Will in NYC (1404’s)

Certain individuals have standing to request discovery before file objections to a Will and ultimately contest a will.  These include individuals whose rights have been negatively affected by the instrument purported to be the decedent’s will, such as an individual whose share under the decedent’s will is smaller than the share he/she would have been entitled to if the decedent died without a will or a beneficiary whose share under the current will is smaller than the share he would have received under a will previously executed by the decedent.

Here is an example: Thomas died testate (which means he had written a Will) as a resident of New York City.  Thomas’s friend, Cynthia, commenced a probate proceeding in order to probate an instrument that she claims is Thomas’s Last Will and Testament.  The instrument leaves everything to Cynthia and names Cynthia as executor and another friend, Sheila, as successor executor.  When Deirdre (Thomas’ next of kin) read a copy of the document purporting to be Thomas’s will, she became concerned, as Thomas had always sent her copies of his will each time he executed a new one and his previous wills always left everything to her and her children.  Deirdre does not believe that the document that Cynthia filed in court was her uncle’s will.  Deirdre wishes to object to the probate of the instrument, but she wishes she had more information to help her decide whether or not to contest the will and engage in estate litigation.  What can she do?

Deirdre has standing to contest the will as an individual whose rights are negatively affected by the instrument that Cynthia offered to the court for probate. As a person with standing to contest the will, Deirdre may commence pre-litigation discovery.

Before conducting discovery pursuant to Section 1404 of the Surrogate’s Court Procedure Act (“SCPA”), an interested person planning to contest the purported will should first conduct document discovery. In conducting document discovery, the contesting individual will ask for documents and information that they believe may shed light on one or more of the grounds upon which a will contest can be made. The grounds for contesting a will include lack of testamentary capacity, lack of due execution, undue influence, fraud, and duress.

If document production yields documents or evidence of any of these grounds, the person contesting the will can then commence discovery under SCPA § 1404, which involves deposing those individuals involved with the execution of the document purporting to be Thomas’s will.  (Note that 1404 discovery can be conducted either before or after objections are filed.)

Under SCPA § 1404, a party to the proceeding can examine the following individuals:

  1. The individuals that witnessed the will execution;
  2. The person who prepared the will;
  3. The nominated executors and the proponent of the will if there is a provision in the will that prevents distribution if the will is contested;
  4. Anyone else who has knowledge of substantial importance or relevance to a “decision to file objections to the will” if the court authorizes the party to examine such person.

Section 1404 defines “person who prepared the will” as the person who was receiving instructions from the testator regarding the preparation of the will.

1404 Depositions

Discovery under SCPA § 1404 is often conducted in the form of depositions taken of the witnesses to the will execution and the person who drafted the will, who is usually an attorney.

The scope of 1404 depositions is limited to matters concerning objections to probate that may be raised by the interested party.

When deposing the attorney-draftsman, it is important to ask about the attorney-client relationship.  This could include questions about who initiated the client-attorney meetings, whether the testator attended the meetings alone or with other individuals, and who communicated with the attorney about the preparation of the will.  The deposing attorney may also wish to ask the draftsman about the decedent’s health, whether he was able to communicate his wishes on his own, whether he understood who his family members were and what his assets were, whether he understood the consequences of making  a will, and whether he appeared to be able to manage his finances without assistance.  Such line of questioning may produce information about the decedent’s capacity or whether the decedent voluntarily prepared and executed the instrument.

It is also necessary to depose the draftsman about the execution of the will.  Since the witnesses are present at the time of the execution, the witnesses will also be asked questions about the will execution.  Questions might pertain to the individuals that were in the room at the time of the execution, the timeline of the signing of the will by the decedent and the witnesses, and any conversations that the decedent had with any individuals who were present before, during, and immediately after the will signing.  Such questioning might produce information regarding whether the will was duly executed, whether the decedent lacked capacity to sign the document, and whether the decedent voluntarily signed the document.

It is important to note that discovery conducted in connection with estate litigation is generally limited by the three-year, two-year rule. This means that it is limited to “three years prior to the execution of the will and two years thereafter or to the decedent’s date of death, whichever is shorter.”

If you decide that you want to pursue 1404 depositions, you should consider when to conduct these depositions, as timing affects who bears the costs of such depositions.  SCPA § 1404 provides that the testator’s estate is responsible for the costs of SCPA § 1404 examinations if they are conducted before objections are filed, while the person objecting to the will is responsible to pay such costs if the examinations are conducted after objections are filed.

Specifically, where examinations are conducted before objections are filed, the estate pays for:

“(1) the initial production or commission and the examination of (A) the first attesting witnesses within the state who are competent and able to testify who are produced by the proposent, or (B) if no witness is within the state and competent and able to testify, the witness without the state who resides closest to the county in which the probate proceedings are pending and who is competent and able to testify; and

(2) the stenographer and one copy of the transcripts of such examinations for the court and any  guardians ad litem.”

Where examinations are conducted after objections are filed, all costs are paid by the person objecting to the will (otherwise known in estates matters as the “objectant”), in accordance with article 31 of the civil practice law and rules.

We can help you evaluate the merits of your case, conduct 1404 examinations, engage in pre-objection discovery, file objections, engage in post objection discovery, and take all of the steps necessary to get you your share. Please feel free to contact us or visit our website to learn more.

Additional resources provided by the author

For more information, please contact probate and estate planning attorney Regina Kiperman:
Phone: 917-261-4514
Email: rkiperman@rklawny.com
Or visit her at her new location:
80 Maiden Lane
Suite 304
New York, NY 10038

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