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This is a probate matter which comes on by motion of petitioner following the suspension of a hearing pursuant to SCPA 1404 held at the law office of respondent’s attorney by agreement of the parties.

A New York Probate lawyer said that Petitioner requests three substantive orders related to the examination of witnesses before resuming the hearing: (1) to continue the hearing at the County Courthouse under the supervision of the Surrogate or other designee; (2) permission to question witnesses regarding events prior to the three-year period before the date the propounded instrument was executed; (3) that the witness and the attorney who drafted the decedent’s last three wills, fully produce all of his files relating to the three wills, the last of which is the propounded will, including files dated prior to the three-year period from the date the propounded instrument was executed.

Petitioner alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

A Suffolk County Probate Lawyer said the propounded will is dated November 7, 2002. Allegedly, there are also prior wills dated August 22, 2001 and September 16, 1999. The time span between the propounded will and the oldest will is 3 years and 52 days. That is, just 52 days beyond the three and two rule.

In all three wills, the decedent acknowledged, and made bequeaths to, his three daughters by a previous marriage. In two of the three wills, the decedent stated he was married to the petitioner. In two of the three wills, he acknowledges having a son with petitioner, his current wife, but denies having any children with petitioner* in one of the three wills. All three wills have provisions regarding decedent’s estate that differ in size of the shares or listing different objects of his bounty including his declarations of paternity which are patently inconsistent.

A Westchester County Probate Lawyer said that SCPA 1404 examinations, witnesses must be produced before the court, said examinations shall be held at the courthouse, but may be supervised by the Surrogate or his designee. Petitioner’s second request, for permission to question witnesses prior to the three-year period from the date the propounded instrument was executed, and the third request, for discovery of documents relative to the same time period, pursuant to special circumstances, requires a more probing analysis since there is a scarcity of Surrogate’s Court decisions on these issues.

At first review, it would seem that whether special circumstances exist herein, is the issue for this court’s determination. However, before deciding whether special circumstances exist herein, this court must first determine if it applies to a SCPA 1404 examination.

There are a number of cases where various surrogates apply the section 207.27 three- and two-year time limitation to SCPA 1404 examinations without explanation. One Surrogate has held, after analysis, that the three- and two-year time limitation of section 207.27 applies to SCPA 1404 examinations and document production whether the examination is held prior to objections or after objections have been filed.

“In any contested probate proceeding in which objections to probate are made and the proponent or the objectant seeks an examination before trial, the items upon which the examination will be held shall be determined by the application of article 31 of CPLR. Except upon the showing of special circumstances, the examination will be confined to a three-year period prior to the date of the propounded instrument and two years thereafter, or to the date of decedent’s death, whichever is the shorter period.”

The legal community commonly refers to an examination before trial as an EBT. It is a discovery device under article 31 of CPLR, which is applicable to most civil cases and to both SCPA 1404 examinations and section 207.27.

However, CPLR article 31 provides that the discovery device commonly called an EBT is, in actuality, a deposition upon oral questions. Thus, any argument that section 207.27 only applies to the legal community shorthand EBT is misplaced. Since the term EBT is a misnomer, the words “examination before trial” in section 207.27 actually refer to an examination before a trial of any kind, civil or Surrogate.

However, even though section 207.27 does apply to any examination before a trial generically, it only applies in SCPA 1404 examinations when there is a “contested probate proceeding in which objections to probate are made.”

The court finds that the section 207.27 rule only applies after a party has filed a formal objection to a probate proceeding; it does not apply prior to objections. And, once a party has filed a formal objection, the rule limits discovery in examinations before trial to three years prior and two years beyond the creation date of the propounded instrument or the decedent’s death, whichever is shorter. Since section 207.27 limits a litigant’s right to discovery, it must be narrowly construed.

The court finds that petitioner has shown special circumstances herein as required by section 207.27, applicable to SCPA 1404 examinations and document discovery since objections were formally filed with the Surrogate’s Court prior to notice for examinations under SCPA 1404.

Based upon the above, it is ordered that the SCPA 1404 examination shall resume at the Sullivan County Courthouse before the Surrogate or his designee at a date to be agreed upon by all parties and the court, and it is further ordered that petitioner may examine the SCPA 1404 witnesses on any relevant matters which may form the basis for objections and which may have occurred more than three years prior to the date of the propounded will, and it is further ordered that witness and will draftsman, shall produce his entire files regarding the wills of decedent dated November 7, 2002, August 22, 2001 and September 16, 1999, and any other documents or items related to his representation of the decedent in other legal matters.

Here in Stephen Bilkis and Associates, our Bronx County Estate attorneys will assist you in drafting your last will and testament which is in accordance with law. We will make it sure that your estate will be distributed legally. You can also consult our Bronx County Probate lawyers who, on the other hand, will assist you in making the provisions in the last will and testatment effective.

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