![]() Objectant argues that special circumstances exist because the proponents have engaged in a scheme of fraudulent conduct and continuing course of undue influence. The determination whether to expand the scope of discovery is within the discretion of the court (see e.g. This limitation of the time period for which discovery can be obtained is a pragmatic rule designed to prevent the costs and burdens of a "runaway inquisition" (Estate of Das, 2009 NY Misc LEXIS 2411 ). 28, 2014 at 22, col 5 Estate of Giardina, NYLJ, Jat 32, col 4 ). Objectant next seeks to expand discovery in this case beyond the time period set forth in the applicable Uniform Rules for the Surrogate's Court, which confines discovery to the three year period prior to the date of the propounded instrument and two years thereafter (or date of death if earlier), except upon a showing of special circumstances (22 NYCRR § 207.27 see Estate of Armen Manoogian, NYLJ, Feb. Should further information be obtained, objectant may amend the bill of particulars "once as of course prior to the filing of a note of issue" (CPLR § 3042 ).Īccordingly, objectant is directed to provide petitioners with a verified bill of particulars setting forth the information required by 22 NYCRR § 207.23 concerning the allegations of fraud and undue influence within her knowledge, within twenty (20) days from the date of this decision and order. That case, however, predates the effective date of 22 NYCRR § 207.23 which expressly provides that "the proponent shall be entitled as of course" to the bill of particulars. Objectant argues that, to the extent a bill of particulars is required on these issues, it need not be provided until after the depositions of the parties and the completion of discovery, citing Matter of Reynolds, 38 AD2d 788 ), a probate proceeding which held that a showing of special circumstances must be made to obtain a bill of particulars prior to completion of examinations before trial. However, petitioners also appropriately seek particulars concerning the issues of undue influence and fraud. In this case, petitioners have erroneously demanded a bill of particulars concerning the issues of due execution and testamentary capacity.Īccordingly, the branch of the motion to strike that part of petitioners' demand seeking a bill of particulars on the issues of due execution and testamentary capacity is granted. A proponent, however, may not demand a bill of particulars with respect to issues that it has the burden of proof on, namely due execution and testamentary capacity (see e.g. The latter section provides that when objections to probate are made on the grounds of fraud or undue influence, the proponent is entitled to a verified bill of particulars setting forth particular, itemized information. In probate proceedings, demands for bills of particulars and responses are governed by CPLR § 3041 and § 3042, as well as the Uniform Rules for Surrogate's Courts, 22 NYCRR § 207.23. Likewise, petitioners claim that objectant has failed to provide a response to their demand for a verified bill of particulars. ![]() Although examinations before trial of the parties were scheduled at the preliminary conference, they have not been conducted since objectant claims she has not received certain financial records and signed HIPPA authorizations from petitioners. Objections were filed after SCPA § 1404 examinations of the attorney draftsperson and one witness. Offered for probate is an instrument dated Apwherein decedent bequeaths her interest in a certain corporation to her three children equally and leaves the residuary estate only to petitioners. In this probate proceeding, objectant moves for an order striking that part of petitioners' demand for a bill of particulars which seeks particulars on the issues of due execution and testamentary capacity, expanding the scope of discovery beyond the time period set forth in the Uniform Rules for the Surrogate's Court (22 NYCRR § 207.27), directing petitioners to provide a response to objectant's discovery demands, and for sanctions and attorney's fees.ĭecedent died on Janusurvived by three children, the petitioners Theodore and Philip, and the objectant Patricia. ![]() This opinion is uncorrected and subject to revision before publication in the printed Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
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