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Drafting Attorney’s Computer Inspected for Evidence in Will Contest

A Surrogate’s Court in Erie County, New York, ordered the drafting attorney of a will to turn over his computer for inspection during discovery in a will contest.

In the Matter of Nunz, 53 Misc. 3d 483, the Surrogate’s Court ruled that a “proper basis” existed for the drafting attorney’s computer to be tested in order to help resolve matters of uncertainty concerning the execution of the Decedent’s will.

When Can A Drafting Attorney’s Computer Be Inspected For Evidence In A Will Contest?

In this case,  Decedent went to the drafting attorney approximately one month prior to death to have a will prepared. Following preparation of Decedent’s will, all of the documentation related to the will’s preparation was allegedly missing from the drafting attorney’s computer.

The will purported to leave all of Decedent’s estate to his second wife, who was Decedent’s surviving spouse.  Five of Decedent’s six children from Decedent’s earlier marriage contested the will and sought a discovery ruling from the Court to permit a forensic expert the requisite access to reconstruct the drafting attorney’s lost files in order to support their position.

Following an evidentiary hearing on the matter, the Court held that electronically stored information (ESI) was “clearly discoverable” for the Decedent’s children so that they obtain all information “material and necessary in the prosecution [of their] action” relying on NY CPLR 3101(a), which does not expressly mention ESI.

There is a growing trend in the way discovery, particularly e-discovery, is conducted.  This decision is another example of how electronically stored information may work its way into a case or proceeding.  As court’s around the country become more familiar with electronic discovery, electronic discovery can be expected in forums where such discovery has not traditionally taken place.

What Relevant Information Does a Drafting Attorney Have In A Will Contest?

Drafting attorneys are key components of any will contest litigation.  The drafting attorney will know facts relevant to claims of undue influence and testamentary capacity like:

  • Who was with the decedent when the will was signed?
  • How did decedent look when the will was signed?
  • Did decedent carry on a lucid conversation?
  • How long was the execution ceremony for the signing of the will?
  • How did the decedent contact the drafting attorney?
  • Did someone else set up the appointment for the decedent to meet with the drafting attorney?
  • Who gave the drafting attorney the instructions for the terms of the will?
  • Did the decedent come alone to the appointments with the drafting attorney?
  • Who else did the drafting attorney communicate with regarding the decedent’s will?
  • Who held the original will for safekeeping after it was executed?
  • Did the drafting attorney represent the Decedent at any time prior to the drafting of the contested will?

The drafting attorney’s computer can have a lot of relevant evidence for a will contest as well, including drafts of the will and data concerning how long the drafting attorney worked on the documents.


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