{"id":10272,"date":"2020-03-27T14:37:41","date_gmt":"2020-03-27T14:37:41","guid":{"rendered":"https:\/\/probatestars.com\/?p=10272"},"modified":"2020-04-10T10:59:33","modified_gmt":"2020-04-10T10:59:33","slug":"the-3-2-discovery-rule-in-new-york-will-contests","status":"publish","type":"post","link":"https:\/\/probatestars.com\/the-3-2-discovery-rule-in-new-york-will-contests\/","title":{"rendered":"The 3\/2 Discovery Rule In New York Will Contests"},"content":{"rendered":"

The 3\/2 discovery rule in New York will contests<\/a> 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.\u00a0 The 3\/2 discovery rule is found in New York’s Uniform Surrogate\u2019s Court Rule 207.27, which states:<\/p>\n

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.<\/p><\/blockquote>\n

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.<\/p>\n

What Discovery Is Obtained In A New York Will Contest?<\/h2>\n

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

The attesting witnesses to the will and the drafting attorney give testimony and provide relevant documents through discovery.<\/p>\n

Medical records of the decedent are also often obtained, as well as financial records.<\/p>\n

What Is The Purpose of the 3\/2 Discovery Rule?<\/h2>\n

The purpose of the 3\/2 discovery rule in New York probate litigation is two-fold.<\/p>\n

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.\u00a0 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.<\/p>\n

Second, the time limitation reduces the amount of discovery disputes.\u00a0 Many states do not limit the time period for which documents can be obtained during a will contest.\u00a0 This results in disputes over how far back parties can obtain discovery records, which increases fees and costs.<\/p>\n

Can The Time Period For Discovery In A New York Will Contest Be Expanded?<\/h2>\n

Yes.\u00a0 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.\u00a0 Examples of special circumstances might include specific events that might directly affect the validity of the will, or a pattern of bad conduct.<\/p>\n

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

In Judelson, the movant argued three grounds to expand the 3\/2 rule.\u00a0 Specifically, the movant alleged that:<\/p>\n