SATNARIN PERSAUD v. << (2026)

In this contested probate proceeding, petitioner, Donna McGhee, moves for an Order pursuant to SCPA 1404, CPLR 3101, and CPLR 3104 granting petitioner leave to conduct a "limited post-discovery deposition" of the attorney drafter of the propounded instrument and for the payment of "reasonable compensation" to the drafter pursuant to CPLR 8001(a). Objectants oppose the motion and cross-move to dismiss the proceeding and for the granting of letters of administration pursuant to SCPA 1001(9).

Given the nature of the competing relief sought, a detailed recitation of the protracted history of this estate is unfortunately warranted.

The decedent passed away on January 15, 2014, leaving four (4) children, petitioner, Donna McGhee, Morris Persaud, Vernon Persaud, and Hubert Persaud as her distributees and heirs-at-law. Shortly thereafter, petitioner, by her then attorney, Michael Alliance, Esq., filed a handwritten petition seeking to admit an instrument dated January 6, 2011, to probate and for the issuance to her of letters testamentary.

The instrument, which at first blush, appears by all accounts to have been drawn by a layperson, was purportedly drafted and its execution supervised by attorney, Daniel Alliance. The substantive terms of the instrument appear on a single page, and consist of only three paragraphs:

FIRST: I give, devise and bequeath my entire estate, real and personal, of whatever nature and wherever situated, including all property ineffectively disposed of herein to my daughter, Donna McGhee.

SECOND: I give, devise and bequeath my personal residence, located at 122-15 194 Street, Springfield Gardens, NY 11413, to my daughter Donna McGhee.

THIRD: I appoint my daughter, Donna McGhee, to handle my estate.

Following the testator's signature is the signature of attesting witness, Jacob Alliance, Esq., and attesting witness Sonnia Castellon. Haphazardly attached to the instrument is an out-of-sequence self-proving affidavit. The affidavit bears the signatures of the attesting witnesses and is notarized by the drafting attorney.

Objections to the instrument were filed by the decedent's three (3) sons, asserting that the will is invalid in that it was not properly executed; the decedent lacked testamentary capacity; and the instrument was procured through fraud and/or undue influence.

After granting several adjournments to the parties, both sides failed to appear for a preliminary conference and the matter remained dormant until the court, on its own initiative, ordered the appearance of the parties on April 1, 2019. Upon the failure of both parties to appear, the proceeding was dismissed due to petitioner's failure to diligently prosecute the matter (SCPA 209[8]).

Approximately three years later, petitioner, as a self-represented party, commenced the within proceeding for probate. By this time, the decedent's son, Vernon, had post-deceased, and additional documentation was required of the petitioner to assure that all necessary parties, including, Vernon's distributees, were cited. This, coupled with the fact that it took several attempts on the part of the petitioner to file documents in proper form, resulted in a Citation return date of October 19, 2023. The petitioner did not complete jurisdiction until April of 2024. A Guardian ad Litem was appointed on behalf of Vernon's infant distributee.

By Order dated May 6, 2024, examinations pursuant to SCPA 1404 were to be completed by July 8, 2024, and objections were due on July 18, 2024. It was at this stage that the petitioner retained her current attorneys.

After the examinations were adjourned several times, the Guardian ad Litem filed an interim report informing the Court that despite numerous telephone calls, emails, and letters, she had received no response from attorney drafter Daniel Alliance.

Communications with attesting witness, Jacob Alliance, also proved to be fruitless. According to the Guardian ad Litem, Jacob Alliance is the father of both the drafter and petitioner's prior attorney, Michael Alliance. However, he refused to answer questions concerning the testamentary instrument, claimed that he was unaware of the whereabouts of his sons, and expressly stated that he would not accept any further telephone calls or respond to any inquiries concerning the instrument.

Thereafter, a conference was held with the Court at which time petitioner's counsel was reminded of their obligation to produce the witnesses for a 1404 examination. Subsequently, the Guardian ad Litem informed the Court that despite numerous requests from objectants' counsel, the petitioner had not produced any of the witnesses in accordance with the Court's directives.

Delays attributable to unresponsive witnesses and an apparent lack of urgency on the part of petitioner's counsel were further exacerbated by the Guardian ad Litem's request to be relieved from the matter; the illness and death of objectant's counsel; and the aging out of the newly appointed Guardian ad Litem's ward.

Upon the subsequent failure of petitioner's counsel to appear for a court-ordered conference, by Order dated April 21, 2025, the parties were directed to appear for a status hearing with the Court observing that given the inordinate amount of time that had elapsed, "petitioner is now running the risk that the offered instrument be denied probate pursuant to SCPA 1001[9]."

At the status hearing, and upon consent of the parties, another order was entered scheduling 1404 examinations for May 29, and May 30, 2025, with objections due no later than June 9, 2025. Only then did petitioner's counsel seek to compel the examination of the witnesses by subpoena.

The subpoenas were served, but the drafter and attesting witnesses were not produced. Respondents proceeded to file objections to the offered instrument, claiming it was invalid on the basis of lack of due execution, lack of capacity, duress, undue influence, and fraud. Petitioner then filed, albeit improperly, a document purporting to be a "Verified Response in Opposition to Verified Objections to Probate." There is no such pleading in this Court (SCPA 302). Neither petitioner nor objectants filed a timely demand for a jury trial (SCPA 502).

Objectants thereafter filed a motion seeking, inter alia, dismissal of petitioner's "pending probate petitions" and the issuance of letters of administration pursuant to SCPA 1001(9). The motion was withdrawn, without prejudice, on the basis that petitioner would submit to an examination and the attesting witnesses and drafter would be examined at petitioner's expense.

At the subsequent pre-trial conference, the parties advised that only the examination of attesting witness Sonnia Castellon had been completed. Settlement discussions were unproductive and the parties stipulated to complete discovery prior to the continued pre-trial conference scheduled for December 16, 2025.

At that time, attempts to settle the matter again proved unsuccessful. The parties acknowledged that with the exception of petitioner furnishing legible copies of post-deposition documents, discovery was complete and the parties would file dispositive motions. By Order dated December 17, 2025, such motions were to be filed on or before February 16, 2026. Instead of doing so, petitioner filed the within motion.

According to the movant, drafting attorney Alliance, upon being served with a subpoena, is now willing to testify "voluntarily upon reasonable compensation for the professional time he will be required to devote to testimony and preparation." Petitioner avers that she is willing to compensate the witness "solely for his time away from his legal practice and not for the substance, nature, or outcome of his testimony." The moving papers do not specify the amount of compensation.

Objectants cross-move to dismiss the petition and grant letters of administration pursuant to SCPA 1001[9] on the grounds that petitioner has failed to diligently prosecute the proceeding. Additionally, objectants oppose the re-opening of discovery to permit the examination of the attorney drafter at this late date and after the close of discovery.

As a preliminary matter, it has been over twelve (12) years since the decedent's death and the estate remains unadministered. Suffice to say, given the countless opportunities and courtesies that have been extended to petitioner and her counsel over the course of many years, the attempt to now re-open discovery on terms dictated by a recalcitrant attorney drafter border on absurd.

Turning to the branch of the motion to permit a post-discovery deposition of the drafting attorney, it has long been established that the court is vested with broad discretion to supervise discovery and, absent improvidence on the part of the Court, such a determination will not be disturbed (see, e.g.,Matter of Harriman Estates at Aquebogue LLC v Town of Riverhead, 151 AD3d 854 [2d Dept 2017]).

In this instance, petitioner has had over a decade of opportunity within which to procure the examination of the drafting attorney and has been granted countless extensions by this Court and by opposing counsel for the purpose of doing just that to no avail. The granting of such courtesies is not infinite, and the delays that have been encountered herein are to the detriment of the estate and the litigants.

Accordingly, the Court in its discretion denies the branch of the motion seeking leave to conduct a post-discovery deposition.

Although denial of the aforesaid renders the balance of the movant's request for relief moot, the Court's opinion on the issue of witness compensation in the context of probate proceedings may nevertheless prove useful given the scant decisional law on the topic.

To that end, CPLR 8001(a) provides that "any person whose attendance is compelled by a subpoena . . . shall receive for each day's attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile to the place of attendance from the place where he or she was served, and return."Voluntary payments in excess of the aforesaid statutory attendance fees, while not expressly prohibited, are not without limits (see Matter of Feinberg, 2012 NYLJ LEXIS 5503 [Sur Ct, Queens County 2012]). Specifically, Rule 3.4(b)(1) of the New York Rules of Professional Conduct provides as follows:

A lawyer shall not . . . offer an inducement to a witness that is prohibited by law or pay, offer to pay or acquiesce in the payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome of the matter. A lawyer may advance, guarantee or acquiesce in the payment of:

(1) reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses; or

(2) a reasonable fee for the professional services of an expert witness and reasonable related expenses.

In this instance, the cross-movants' submission includes a copy of petitioner's sworn statement dated November 24, 2025, wherein she asserts that drafting attorney Alliance "requires a retainer fee of $5,000.00 through Zelle in advance for one appearance and an hourly rate of $400 per hour for his participation in testimony or deposition."

While it is not necessarily improper to provide reasonable compensation to a witness for their time, in this Court's experience, it is not customary for a drafting or supervising attorney to demand compensation in exchange for testimony concerning a testamentary instrument of their own creation. Indeed, an estate practitioner with just cursory knowledge of the relevant statutory law is presumably cognizant that they might be called upon in the future to testify, inter alia, about the formalities of due execution; the decedent's capacity; and the decedent's intentions. SCPA 1404 grants an unqualified right to such an examination and CPLR 4503(b) mandates such disclosure:

In any action involving the probate, validity or construction of a will or, after the grantor's death, a revocable trust, an attorney or his employee shall be required to disclose information as to the preparation, execution or revocation of any will, revocable trust, or other relevant instrument . . .

Consequently, where, as here, the testamentary scheme deviates from that of intestacy it is foreseeable, if not probable, that an attorney-drafter or supervising attorney, will be called upon to testify concerning the circumstances surrounding the instrument's execution. Such a possibility can be considered by the drafting attorney when establishing the appropriate compensation for the estate plan.

While the within petitioner is free to advance such a payment from her own funds, given the crude and unsophisticated instrument that has been presented, a $5000.00 retainer appears grossly out of proportion to the value of the lost time spent testifying to its creation. Moreover, the petitioner makes such a payment at the peril of permitting the trier of fact to consider whether the payment had an effect on the witnesses' credibility (see, e.g., Caldwell v Cablevision Sys. Corp, 86 AD3d 46, 55 [2d Dept 2011]).

In any event, this Court is not willing to sanction such a payment under

the circumstances presented.

The motion is denied in its entirety.

The cross-motion seeking dismissal of the proceeding and the granting of letters of administration pursuant to SCPA 1001(9) is denied. Discovery having been completed, the matter is at long last ripe for a determination on the merits (SCPA 1408).

Accordingly, the petitioner is directed to file a Note of Issue, Certificate of Readiness, and Statement of Issues on or before October 23, 2026 (22 NYCRR 207.29(b); 207.30).

The failure to comply with this order may result in the dismissal of this proceeding (SCPA 209(8)) or the granting of letters of administration in accordance with SCPA 1001(9).

There shall be no extensions without further order of this Court.

This is the decision and order of the court.

The Clerk of the Court is directed to forward a copy of this decision and order to the parties who have appeared in this proceeding.

Dated: October 8, 2026

SURROGATE

Cassandra A. Johnson, S.