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Brother Left Out of Will Files Will Contest Action


On December 1, 1988, a resident of Fulton County, 82 years of age (referred to as the “decedent”), died in Spartansburg, South Carolina. He was survived by a brother who is the only distribute. At exactly two weeks before the decedent’s death, he executed a last Will and Testament (referred to as “the will”) on November 17, 1988. The will excluded the brother but included two strangers, whom they are not related to by blood, who reside in South Carolina. The will was attested to before three witnesses, all of whom reside in South Carolina. Subsequently, by reason of the brother’s exclusion as an heir, the brother then objected to the probate of the will or made a will contest and demanded an examination of the attesting witnesses (a probate is the legal process of administering the estate or estate administration of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will – source: Wikipedia). Thus, estate litigation ensued.

Now, where should the examination be held and who must bear the expense of such examination?

The proponent (supporter of the will) claims that once the decedent’s will is presented to the court with an affidavit of the attesting witnesses authorized by SCPA with the requirements having been met, the burden of compelling the production of the attesting witnesses is upon the party seeking to depose such attesting witnesses. A New York Probate Lawyer said the proponent refers the court to Powers, Supplementary Practice Commentaries, that ” * * * the duty of compelling the attendance of a witness [is imposed] upon the party seeking the examination”, and it refused to direct the proponent to produce the witnesses for examination.
The contestant (opponent), on the other hand, claims that the proponent must produce the witnesses to be examined prior to the trial and that it is the proponent’s responsibility to produce the witnesses in New York State or to pay the expenses of a commission held outside of the State of New York.

The court held that in a probate proceeding, the proponent must proceed to prove the will by the examination or affidavits of the attesting witnesses. New York City Probate Lawyers said that before admitting a will to probate, the Surrogate’s Court is required by statute to inquire particularly into all the facts and must be satisfied with the genuineness of the will, the validity of its execution, the competency of the testator in all respects to make a will at the time of executing it, and the freedom of the testator from restraint at the time of executing it. Such inquiries must be made whether or not there is opposition to the probate of the will. Moreover, the consent alone of all interested parties is not sufficient to admit a will to probate. By statute, the Surrogate must still be satisfied as to the genuineness of the will and the validity of its execution. Generally, where there is no contest, or where the issuance and service of process has been waived by all the interested parties, who are of full age and sound mind, the court will not go beyond the testimony of the attesting witnesses. Here, however, objections have been filed and a full inquiry by the court will be required.

Fees and reasonable expenses of a witness must be paid by the party seeking the examination. At least two (2) of the attesting witnesses must be produced before the court and examined if they are within the State and competent to testify. Westchester County Probate Lawyers said but where the witness is hostile and recalcitrant, the contestant should bear the burden of subpoenaing the witness and paying the witness fees, with the understanding that if the contestants were successful in setting aside the probate of the decedent’s will, the court would entertain an application to fix the cost of the examination as a disbursement of the estate.

It is the duty of the court to inquire into all of the facts and circumstances and would require production of the statement whether or not requested by proponents in order that all relevant facts would be before the court.

Where the witnesses to be examined do not reside within the State of New York, obviously it will not be possible to compel their appearance before the Surrogate either by means of a subpoena or by service of the order of the Surrogate. The nonresident witness is then required to submit to oral examination in North Carolina, the cost of which had to be borne by contestant only because the witness had previously been made available by the proponents. It was the duty of the proponent to take out a commission to take the testimony of the subscribing witnesses.

In conclusion:
1. The proponent can be compelled to take the testimony of the subscribing witnesses or other witnesses out of State by commission;
2. In taking the testimony there by commission, in any form, the testator’s estate must, in any event, bear the expenses of the preparation of the commission, the fees of the commissioner, stenographer and of any non-resident counsel to assist the proponent;
3. The proponent has the election to take the direct testimony supporting her case either on interrogatories or by an open commission;
4. The party demanding a preliminary examination of such witnesses as proponent may call before the commissioner and has the option of having his cross-examination taken at the expense of the estate as to the fees of the commissioner and stenographer by an open commission, or upon interrogatories; and that contestant must bear the expense of preparing any interrogatories he may have submitted, and any non-resident counsel fees and his own traveling expenses;
5. That if the contestant calls before the commissioner any witness whom the proponent is not obliged to call and does not call, the contestant shall bear the proportionate expense of the fees of the stenographer and commissioner for taking the testimony of such witness.

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