Case Study No. 2: The Discovery Process in Surrogate’s Court

We received a call one day from two brothers complaining of their sister.  Their father had a long term, prior estate plan providing for his children equally.  Right before his death, the plan changed, and their father cut them down and provided a much larger portion of his estate to their sister.   

Around the time of the change, their father had experienced significant tragedy in his life.  His wife had passed away, his dog had died, and he was in and out of the hospital.  The daughter and her husband had also driven him to the attorney appointments to make the change to the will. 

In this type of case, the clients want to know what happened and why the decedent decided to suddenly change his estate plan.  As with a lot of probate disputes, the first step is therefore to ascertain what occurred.  To accomplish this, we generally appear on the citation date and request a scheduling order to obtain document discovery prior to the 1404 examination.   

After obtaining the scheduling order, we served an extensive document demand on the estate.  We requested items such as the estate’s case file, the father’s medical records, financial information, phone records, and written communications and emails.  As in every case, we were particularly interested in communications between the decedent and the key players – the drafting attorney, the fiduciary, and the beneficiaries. 

The estate in this case did not timely serve responses to our document demands.  It sought to delay and ask for several adjournments. To address this problem, we could have gotten the court involved.  The problem was that it could take several months for the court to resolve the issue. 

We elected instead to go around the estate for much of the information requested by engaging in third-party discovery.  So instead of waiting for the estate’s production, which could have taken months and which would likely produce only some of the documents, we simply obtained the estate file from the drafting attorney and served third party subpoenas to get the rest of the information we wanted.  As a result, we obtained much more information from the third parties in a much shorter period of time.

When we finally received the estate’s document response, we noticed that certain documents were unsigned, incomplete, or missing.  We made follow up requests with the estate and after several attempts to obtain the missing information and an office visit by me to inspect the original file, we ended up obtaining additional records and electronic data that had been omitted from the earlier production.  That information included important attorney records and notes, making them highly relevant and useful for cross examination.

So, to sum up the two main lessons from this case study, 1. we insist on receiving the complete estate case file from the drafting attorney prior to the exam, and 2. we go on a scavenger hunt for as much information as possible.


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