The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

The 3/2 Discovery Rule In New York Will Contests

The 3/2 discovery rule in New York will contests limits discovery to three years prior to the contested will, and two years after the date of the will or to the date of death, whichever is earlier.  The 3/2 discovery rule is found in New York’s Uniform Surrogate’s Court Rule 207.27, which states:

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.

Therefore, the period of discovery for a New York will contest is limited to three years prior to the date of the will, and two years after the date of the will or to the date of death, whichever is earlier.

What Discovery Is Obtained In A New York Will Contest?

Whether a New York will is being contested on the grounds of undue influence, lack of testamentary capacity, lack of formalities, fraud, or other grounds, certain discovery is typical in almost every New York will contest.

The attesting witnesses to the will and the drafting attorney give testimony and provide relevant documents through discovery.

Medical records of the decedent are also often obtained, as well as financial records.

What Is The Purpose of the 3/2 Discovery Rule?

The purpose of the 3/2 discovery rule in New York probate litigation is two-fold.

First, the time limitation focuses the parties to the will contest on the relevant time period and the events that occurred within that time period.  Events during the three years prior and two years after the execution of the will would be the most relevant to the preparation and execution of the contested document.

Second, the time limitation reduces the amount of discovery disputes.  Many states do not limit the time period for which documents can be obtained during a will contest.  This results in disputes over how far back parties can obtain discovery records, which increases fees and costs.

Can The Time Period For Discovery In A New York Will Contest Be Expanded?

Yes.  The court can allow an expansion of the time period of the 3/2 rule if the party who seeks the expansion shows that special circumstances exist warranting the expansion.  Examples of special circumstances might include specific events that might directly affect the validity of the will, or a pattern of bad conduct.

In Matter of Estate of Judelson, a May 2019 case from Manhattan Surrogates Court, the court refused to expand the discovery period outside of the 3/2 rule.

In Judelson, the movant argued three grounds to expand the 3/2 rule.  Specifically, the movant alleged that:

  • He needed to look into whether a possibly fraudulent will was offered for probate in Arizona by the decedent in the estate of decedent’s prior spouse, who died in 2011;
  • The decedent’s probate estate should be larger than it is because of decedent’s work history and sizeable exit package received when he left his company in 1983.
  • The decedent changed his testamentary plan after the death of his spouse in 2011.

The court denied the request to expand the discovery period.  The movant demonstrated no basis for inquiry into the probate of the prior spouse and alleged no connection between such acts and a possible objection to the 2017 will offered for probate in this action.  Thus, there was no basis to have discovery and litigate issues regarding Maria’s estate in the context of the probate of this decedent’s will.

Regarding the size of the probate estate, the court stated:

[P]roof that a testator owned or controlled more assets at some previous time, without some evidence showing a nexus to a possible objection to the propounded instrument, constitutes mere speculation that cannot be the basis for a finding of special circumstances warranting more extensive probate discovery.

Finally, the fact that decedent may have changed his testamentary plan after the death of his spouse did not constitute a “special circumstance” on which broader discovery is required to ensure that the propounded will is genuine.  The court stated:

Moreover, counsel confirms that there are 13 prior wills within the 3/2 period, and the propounded instrument here primarily benefits his spouse and children.  There is thus no indication of a testamentary plan benefiting those who might not be considered the natural objects of his bounty, and an estate plan modification after a spouse’s death in this instance provides no evidence of an improper design upon decedent’s property sufficient to warrant a more expansive inquiry.

Therefore, to obtain discovery outside of the limits of the 3/2 discovery rule in a New York will contest, the special circumstances alleged must be specific and have a direct relation to the validity of the will being contested.

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Find Your New York Probate Star

Brooklyn

Inna Fershteyn

Westchester County

Anthony Nigro

Nassau County

Cyrus Shaw

Erie County

Ruth P. George

Queens

Rudolf Karvay

Suffolk County

Marc Weissman

Rockland County

Ari J. Zaltz