When we represent clients considering a probate contest, we take full advantage of the opportunity for pre-objection discovery. We find it particularly helpful to review as much information about the decedent as possible prior to conducting the SCPA 1404 examination.
- Drafting Attorney’s Case File. The best source for cross examination will be the drafting attorney’s case file. We are particularly interested in the billing records, the attorney notes, and the correspondence.
- Medical Records. If we have the medical and financial records, we will use them to test the witnesses’ knowledge of the decedent’s health. We will ask the drafting attorney and the attesting witnesses about their interactions with the decedent and whether they were aware of any physical or mental conditions suffered by the decedent. Often, these witnesses may have been completely ignorant of significant underlying conditions, thereby calling into question the reliability of their opinions about the decedent’s capacity and the lack of undue influence.
If we do not have medical records in time for the exam, however, we may still proceed without the medical records to avoid delay. To account for this, we will ask the witnesses about their knowledge of the decedent’s health and what the decedent told them about it. We will then later compare the answers to the records we later obtain to see if the answers are accurate.
- Phone Records. If we have the phone records, we can determine how many times the decedent called the law office, the beneficiaries, and anyone else. We may compare the records to the witnesses’ answers about durations of calls and the number of calls. If the decedent told the witness that he or she did not have communications with our clients, we will check the phone records to see if the statement was accurate.
- Prior Estate Planning Documents. We look to prior estate planning documents to see if there was a deviation in the decedent’s estate plan and how long the prior plan existed. We often ask the witnesses about their knowledge of a deviation and the reason given by the decedent for it.
- Financial Records and Credit Card Statements. We look to financial records and beneficiary change forms to see if the decedent gifted any funds to the beneficiaries and if any power of attorney was used to transfer funds on the decedent’s behalf. Again, we ask the witnesses if they were aware of any of these circumstances when the will was executed.
We also look to credit card statements to see where the decedent was at or around the time of the will execution and who the decedent may have been communicating with. We also try to obtain this information from and compare it to other sources, such as the decedent’s emails, appointment book, calendar, and contact lists.