Understanding Discovery in Probate Proceedings: Putting the Pieces Together

As explained previously, you need to be familiar with the rules of procedure to successfully play the litigation game in Surrogate’s Court. The rules can be much more complex than those applicable in the Supreme Court.

As a prime example of this, consider the rules governing discovery in Surrogate’s Court. To understand them, you need to first identify the type of proceeding at issue and then determine if the Surrogate’s Court Procedure Act (“SCPA”) contains any specific rules of its own.

SCPA Sections 1404 and 1410, for example, contain specific rules that authorize pre-objection discovery in probate proceedings. They permit parties to depose certain witnesses prior to the filing of objections, generally the attesting witnesses and the drafting attorney. They also permit the party conducting the examination to obtain documents from parties and third parties of all relevant matters which may be the basis of objections to the probate petition. Section 1404 also requires the estate to pay for the cost of these examinations if they occur prior to objections.

If objections are filed, the parties may seek to engage in post-objection discovery under Article 31 of the Civil Practice Law and Rules (“CPLR”), as applicable to probate proceedings by SPCA 102. SCPA 1404, however, limits a parties’ right to re-examine the same witnesses examined during pre-objection discovery.

Parties must also be familiar with Rule 207.27 of the uniform rules for the Surrogate’s Court. This rule is referred to as the so-called “3-2 rule”. Absent special circumstances, the 3-2 rule limits the parties’ rights to obtain discovery in probate proceedings to three years before and two years after the decedent executed the will (or up until the decedent’s death, if sooner).

To make things even more confusing, you will need to review the case law interpreting the 3-2 rule. By its plain language, the rule appears to be limited to only post-objection depositions. Section 1404 also expressly provides the party conducting a pre-objection examination with “all rights granted under [CPLR] article 31 … with respect to document discovery.” Nevertheless, the rule is drafted poorly. Given the confusion, a number of cases have decided to apply this 3-2 rule uniformly to all discovery conducted in probate proceedings, including pre-objection discovery. Parties must therefore familiarize themselves with the case law on this issue and ascertain whether the Surrogate in their case has rendered any prior decisions interpreting the rule. Parties must also review the case law to ascertain whether special circumstances exist to expand the scope of discovery.

Can You Admit a Lost or Destroyed Will to Probate?

An estate practitioner may be faced with a situation where the original will of the decedent cannot be found after his or her death. Don’t worry, at least not just yet.  In such a case, SCPA 1407 provides the procedure for admitting a lost or destroyed will to probate. The first hurdle is to establish that the will has not been revoked.  However, this is no easy task.

“If a will, shown once to have existed and to have been in the Decedent’s possession, cannot be found after [his or her] death, the legal presumption is that the [decedent] destroyed the will with the intention of revoking it” (Matter of Demetriou, 48 AD3d 463, 464 [2d Dept 2008]). “The burden of proof is on the will proponent to show, by facts and circumstances, that the testator did not destroy the will with the intent to revoke it; mere speculation or suspicion is insufficient” (Matter of DiSiena, 103 AD3d 1077, 1078 [3d Dept 2013]).

We had the opportunity to litigate this issue at the Appellate Division, Third Department. In the case, the record contained evidence that the decedent had disinherited one of her sons in several wills and a revocable trust, including the most recent will offered for probate. The son had left the family business and created his own competing business. The decedent therefore left her estate (including the family business) to her remaining children who had worked for the family business and contributed to its growth. The decedent also twice fought the disinherited son in court, once to preserve her rights to remove him from her will and another time to prevent him from obtaining an interest in her business.

At the Surrogate’s Court, the disinherited son sought summary judgment dismissing the probate petition. The disinherited son argued that the lost or destroyed will created a presumption of revocation and that the record evidence was insufficient to overcome the presumption.

The Surrogate’s Court ruled in favor of the disinherited son and granted summary judgment dismissing the probate petition. The Surrogate held that the proponents of the will did not overcome the presumption, relying on the strong presumption of revocation.

On appeal, we did not dispute the heavy burden imposed on a proponent of a lost will. Rather, we focused on the record evidence and argued that there was sufficient evidence to create a question of fact on the issue.

The appellate court agreed with us and reversed the summary dismissal of the case (Matter of DiSiena, 103 AD3d 1077 [3d Dept 2013]). It determined that the record evidence amounted to more than mere speculation or suspicion about the decedent’s lack of intent to revoke her will. The record, for example, contained evidence of the prior lawsuits and the several wills of the decedent disinheriting her son. Evidence also existed that the decedent had her estate attorney store her codicil for her until her death. The decedent also met with her estate attorney in her hospital room shortly before her death to discuss further estate planning. At that time, she instructed her estate attorney to create an irrevocable trust gifting her remaining interest in the family business to the identical beneficiaries named in her prior wills and revocable trust. The decedent also signed a power of attorney appointing her three children other than respondent as her agents. An unsigned copy of the irrevocable trust documents, which expressly state that respondent is not a beneficiary, was included in the record, and the estate attorney indicated that decedent died before he was able to meet with her to sign the trust documents.

While the case turned out successfully for our clients, we would not have been able to win the appeal without a sufficient record. A practitioner should be familiar with the numerous relevant factors considered by the courts on this issue and develop the record in case to avoid summary dismissal of the probate petition.

To learn more about relevant factors and case law, feel free to contact the experienced trust and estate planning attorneys at TRK Law.

The Possible Grounds to Object: Capacity

Another major objection concerns the decedent’s testamentary capacity. A person is presumed to have sufficient mental capacity to make a will. In addition, an attesting affidavit and the supervision by an attorney also create a presumption of testamentary capacity.

The level of capacity required is a mere simple understanding of the disposition. Specifically the decedent must (1) generally understood the nature and consequences of executing a will, (2) generally know the nature and extent of the property that he or she is disposing of, and (3) generally know the natural objects of his or her bounty, and his or her relations with them.

Given this standard, you should focus on ascertaining the extent of the decedent’s communications, his appearance, demeanor, and responsiveness at and around the time of the will execution. You should examine the complexity of the will, how it was communicated to the decedent, and the level of sophistication of the decedent. You should also inquire about the interactions between the decedent and others present, whether the decedent’s family was discussed at any time, including the day of the will ceremony, and whether the attorney prepared a family tree or took notes about the decedent’s relations with others. Attorney billing records and the decedent’s phone records and emails may also reflect the level of contact the attorney had with the decedent.

An advocate of the will’s admission to probate will attempt to argue that the decedent was lucid and rational at the time the will was made, and that the decedent communicated effectively, knew who he or she was talking to and responded appropriately. You should be prepared to challenge the generalized conclusions often asserted by the witnesses about the decedent’s appearance and capacity. You should also review the decedent’s medical records (request authorizations from the estate to obtain them) to determine if the decedent suffered from any cognitive diseases such as dementia and what kinds of medications the decedent may have been taking.

Be careful not to rely too heavily upon on a person’s old age or general diagnosis. Mere proof that the decedent suffered from old age, physical infirmity and chronic, progressive senile dementia when the will was executed is not necessarily inconsistent with testamentary capacity and does not alone preclude a finding thereof, as the appropriate inquiry is whether the decedent was lucid and rational at the time the will was made.

In addition to learning about the decedent’s age and diagnosis, you should inquire about the decedent with neighbors, relatives, and hospital staff to find out whether they observed the decedent at or around the time of the will’s execution and whether they have any stories to share regarding the decedent’s mental status.

The Possible Grounds to Object: Undue Execution

The first possible ground to object is undue execution. This objection focuses on the will’s technical non-compliance with the formalities set forth in EPTL § 3-2.1.

For example, the statute requires the decedent to sign the will at the end, declare to each of the attesting witnesses that the instrument is his will, and use at least two attesting witnesses. In reviewing the will and cross examining the attorney and witnesses, you should pay attention to the location of the decedent’s signature on the will, as well as any communications between the decedent and others present. Check to see if the decedent declared the document to be his or her last will and, if so, how. Check to see if the decedent signed the will in the witnesses’ presence or otherwise published his signature to the witnesses. Make sure the witnesses also signed the will and the dates of the signatures.

You should also review an administrative check list and other practice guides on estate administration. This will help you outline the various issues involved and help provide you with grounds to challenge the will, even if technically compliant with the statute.

These check lists and practice guides, for example, recommend that the client initial each page. They also caution practitioners against removing staples to make photocopies. Among other things, these circumstances may create doubt as to the will’s validity. One may conclude that the will does not contain the same pages as those executed by the decedent or that the decedent did not read its contents. These circumstances may obtain even greater weight as the case develops, especially depending on the specific cast of characters involved, such as the character of the beneficiaries, the drafting attorney and the witnesses.

Does the CPLR apply in Surrogate’s Court?

Every litigation attorney knows the CPLR. They learn it while they are in diapers in law school. Or, while studying for the bar exam. It generally governs the civil procedure in all courts of New York State (see CPLR 101). It is the equivalent of the FRCP for federal court.

What most litigation attorneys do not know is that the Surrogate’s Court has its own set of rules – the SCPA. It sets forth rules on jurisdiction, pleading, proceedings, etc. It is particularly informative on proceedings by and against fiduciaries. But the SCPA does not cover several procedural matters. It does not talk about summary judgment motion practice or general discovery matters. Where are those rules? Can you use the CPLR to fill the gaps?

This is the same question I asked myself the first time I started practicing in Surrogate’s Court. I wanted to make a motion for summary judgment and did not know if the SCPA permitted it. I then found my best friend, SCPA 102. This section allows you to rely on the CPLR in Surrogate’s Court.

But there is an exception “where other procedure is provided” by the SCPA. A similar rule is found in CPLR 101, which applies the CPLR to all civil matters “except where the procedure is regulated by inconsistent statute.”   

So, yes, you can generally use the CPLR to fill the gaps in the SCPA. But before you do, you will need to compare the CPLR with the SCPA to make sure the exception from SCPA 102 does not apply.

Practice Tip: You can search the case law to see if the courts have applied a specific provision from the CPLR in Surrogate’s Court. In your legal database, search for the particular provision (e.g., “CPLR 3212”) along with the phrase “Surrogate’s Court”.

Game Day in Surrogate’s Court: Knowing the Rules in Estate Litigation

If litigation were a sports game, the civil procedure would be the equivalent of a playbook. It provides each side with a set of rules (plays) to use to win the game. For offensive players, it sets out the plays to start a case and obtain discovery materials to run the ball down the field and score big. For defense players, it shows how to slow down the game, stop the other side from advancing the ball, and obtain an early victory.

So, what is the playbook in Surrogate’s Court? Well, using the sports analogy, image if sports rules were created by lawyers. What would they look like? Well, there would be multiple playbooks, with different books for each stadium. On top of that, there would also be rules interpreting the rules. Now, all of this would be scattered around in numerous sources and you would have to consult them all at the same time to figure anything out. The rules would also change from time to time.

As confusing as it sounds, this is exactly how lawyers created the playbook for civil procedure. In Surrogate’s Court, we start with the SCPA. From there, you should consult with the Uniform Rules for the Surrogate’s Court and see if the judge has any specific rules of his or her own. You will also find additional rules in the CPLR that may help you with your strategy. Of course, you will also need to familiarize yourself with the EPTL for more substantive based rules.

Practice Tip: The SCPA can be quite overwhelming for the beginner. To make it easier to navigate through, I recommend using the table of contents to find the rules applicable to your issue.