The Right to Discovery in Probate Litigation
by cjleclaire
 Bonnie Lawston-LiEstate Attorney
Jan 20, 2017 | 16088 views | 0 0 comments | 819 819 recommendations | email to a friend | print | permalink
by Bonnie Lawston

When someone dies with a will in New York State, that person’s estate must generally be “settled” through filings and proceedings overseen by the probate court. Referred to as probate, this process can often be done without the need for litigation. However, when there are issues about which executors and heirs disagree, probate litigation may be the only way to resolve the dispute.

An essential part of the litigation process is what is known as “discovery.” The discovery phase of a trial is that period where all parties seek to obtain (and are usually required to share) all evidence related to the matters in dispute. Discovery can be accomplished in a variety of ways, through depositions, through the production of relevant documents, and through answers to written questions, known as interrogatories. A couple recent opinions handed down by the Surrogates courts have specifically addressed and clarified the rights of discovery in probate contests.

Matter of Shure

In an opinion handed down in early December, 2016, the Manhattan Surrogates Court confirmed that a third party had to disclose information to allow potential estate beneficiaries to determine whether an executor had breached a fiduciary duty. In Matter of Shure, a co-executor asked the Surrogate Court to compel Chase Bank to provide certain information that involved the estate, information that included reference to internal bank procedures. The co-executor cited SCPA (Surrogate’s Court Procedure Act)2103, which allows discovery of documents and testimony to confirm or deny the existence of assets or property that might belong to an estate. The court recognized Chase Bank’s need to maintain confidentiality of its internal policies, so allowed the co-executor access to the information, but required that the parties enter into a confidentiality agreement.

Estate of Melendez

In this opinion, released in November, an executor sought discovery of documents related to the deceased’s purported spouse, who had attempted to exercise a spousal right of election to the estate (see our blog on the right of spousal election in New York). The executor had alleged that the right of election could not be exercised because of the existence of a prenuptial agreement signed by the alleged spouse. The court held that discovery of passport and border crossing records was reasonable.

Contact the Law Office of Bonnie Lawston

At the Law Office of Bonnie Lawston, we focus our estate administration practice on estates subject to probate in Nassau County and Suffolk County on Long Island. Contact our office online or call us at 631-425-7299 or 24/7 at 855-479-4700 to set up a free initial consultation.

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