There are several advantages to requesting a SCPA 1404 exam prior to filing objections. The major advantage is that the estate has to pay the costs of the exam and the stenographer fees. The exam will also provide you with the opportunity to conduct pre-objection discovery to assist in preparing objections. On the other hand, if you elect to depose a witness prior to filing objections, you generally cannot re-examine the same person again after filing objections.
If you desire a pre-objection exam, you should make this request at the first appearance and discuss a proposed schedule with the court at the same time. The schedule is generally limited to dates for pre-objection document demands and responses, the date for the exam (which will be conducted at the court), and the date for filing objections after the exam.
Prior to the exam, you should specify the witnesses you intend to examine. Such persons generally include the attesting witnesses and the person who prepared the will (see SCPA 1404 ).
To prepare for the exam, you should demand documents in advance, requesting the decedent’s financial records, communications, medical records, and prior wills, among other things. You should also request the case file of the drafting attorney, including billing records and any retainer agreements (see CPLR 4503 [b]; SCPA 102).
The rights to pre-objection document discovery are set forth in SCPA 1404(4), which provides that “the party conducting such examination” has “all rights granted under article 31 of the civil practice law and rules with respect to document discovery.” Generally, courts permit broad inquiry into the “three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of the decedent’s death, whichever is the shorter period” (22 NYCRR 207.27).
The exam should focus on all matters relevant to the filing of objections. You should inquire about the witnesses’ involvement and relationship with the decedent, the decedent’s mental health, and the circumstances of the will’s execution, among other things.