PETER SCHWARTZ PETER ELLIS SCHWARTZ v. << (2026)

In this probate proceeding, Respondents Sam Schwartz, Carolynn Schwartz and Lysa Hoffman (collectively the respondents or movants) move to expand the 3-2 period under the Uniform Rules for Surrogate's Court (22 NYCRR) § 207.27 and for other discovery-related relief. Petitioner Sheila A. Chervin (petitioner or Sheila) opposes the motion. For the reasons set forth below, the motion is granted in part and denied in part.

Background

Peter E. Schwartz (decedent, Peter or father) died on September 9, 2023 at the age of 80, survived by his three children, the respondents, and his spouse, Sheila, the petitioner. Sheila filed a petition to probate a written instrument dated September 1, 2013 (2013 instrument) as the decedent's last will and testament. While pre-objection SCPA 1404 discovery is ongoing, it has been delayed due to disputes regarding the scope of document production and areas of inquiry during SCPA 1404 examinations thereby resulting in this motion.

The Motion

On this motion, the respondents seek the entry of a decision and order:

a) determining that special circumstances exist and expanding the 3-2 period under 22 NYCRR § 207.27 to December 17, 2004 to September 1, 2015  ¹ to include discovery relating to the last will and testament of decedent dated December 17, 2007 (2007 instrument), pursuant to CPLR 3101;

b) ordering petitioner to provide the original 2007 instrument;

c) ordering that if petitioner is not in possession, custody, or control of the 2007 instrument, that petitioner shall disclose who may be in possession of the original;

d) compelling petitioner to produce all prior wills of decedent and discovery relating to those wills pursuant to CPLR 3101;

e) ordering that if petitioner claims she is not in possession, custody or control of the prior wills and discovery relating to those wills, that petitioner shall disclose who may be in possession of those documents;

f) ordering that if petitioner is not in possession, custody or control of the prior wills and discovery relating to those wills, respondents may seek discovery from third parties concerning those wills;

g) ordering petitioner to produce all previously requested discovery material, which she has in her possession, that is now discoverable pursuant to the decision and order to be entered herein;

h) ordering petitioner to do those acts specified in (b) — (g) within 30 days of this decision and order;

i) ordering that petitioner shall cause to be delivered to respondents' counsel fully executed original HIPAA releases and any other such or similar releases reasonably required by third parties within seven calendar days of receipt by petitioner's counsel; and

j) granting respondents such other and further relief as the court deems just and proper.

The movants allege that the 2013 instrument substantially diminishes their interest in their father's estate to the benefit of the petitioner who they contend was "intimately involved" in their father's estate planning when he had "diminished mental capacity and after he was diagnosed with Alzheimer's disease." Movants note that other than the 2013 instrument, there is an instrument titled as a last will and testament for the decedent dated January 12, 2011 (the 2011 instrument) which falls within the 3-2 period, and the 2007 instrument, which falls outside the 3-2 period.

Movants assert that there are four significant differences between the 2007 instrument and the 2011 and 2013 instruments:

1. In the 2007 instrument, there are general monetary bequests of $25,000 to each of the respondents and to each of Sheila's two children, along with a $50,000 bequest to the Larchmont Temple. No general monetary bequests are made in the 2011 or 2013 instruments.

2. Decedent possessed limited powers of appointment over two trusts — one established by his mother Barbara Schwartz and one established by his grandmother Dorothy Halden (collectively the family trusts). In each of the decedent's three testamentary instruments decedent purports to exercise his limited powers of appointment over those family trusts, but in the 2011 and 2013 instruments, the exercise benefits Sheila alone whereas under the 2007 instrument,² Sheila, the decedent's issue (including respondents) and Sheila's issue benefit.³

3. Testamentary trusts created under the 2007 instrument permit the trustee to make discretionary principal distributions to the respondents, whereas the 2011 and 2013 instruments create marital and credit shelter trusts for Sheila's sole benefit during her lifetime, and the respondents have no interest in the principal of the trusts until termination.

4. The 2011 and 2013 instruments contain in terrorem or no contest clauses which apply to all persons other than Sheila. The 2007 instrument does not contain an in terrorem clause.

Respondents contend that special circumstances are established by: (1) significant changes to the decedent's testamentary plan which result in a substantial disinheritance of respondents to the economic and pecuniary benefit of Sheila, (2) the decedent's diminished or diminishing mental capacity, starting in 2009 (two years prior to the 2011 instrument) as discussed in the October 2011 notes of decedent's neurologist; (3) findings in medical tests performed in September 2012 and December 2012 of "moderate cortical hypometabolism in both temporal and parietal lobes, consistent with Alzheimer's — like dementia"; and an "indication" of Alzheimer's disease respectively; (4) Sheila's involvement in the drafting of the 2011 instrument which appears to be the first instrument changing the 2007 testamentary plan; and (5) in 2011, Sheila provided the initial directions to the drafting attorney that the family trusts shall pass outright to her.

The Opposition

Sheila opposes the motion contending, generally, that: (1) respondents have failed to demonstrate special circumstances exist to expand discovery beyond the 3-2 period; (2) the motion is based on speculation; (3) demands for all prior wills and broad third-party discovery are overbroad and not necessary to SCPA 1404 discovery regarding the 2013 instrument; and (4) the in terrorem clause does not justify an expansion.

The Reply

In respondents' reply papers, they generally assert that they have presented facts establishing special circumstances and supporting the requested expansion, and petitioner has provided no case law or arguments to defeat their motion.

Analysis and Conclusion

Discovery in Surrogate's Court proceedings is generally governed by CPLR Article 31, except as modified by other CPLR provisions, the Surrogate's Court Procedure Act or the Uniform Rules for Surrogate's Court (22 NYCRR part 207). Under CPLR 3101, "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense" of a proceeding irrespective of who bears the burden of proof (CPLR 3101). The phrase "material and necessary" is to be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). As the Court of Appeals has stated, the "test is one of usefulness and reason" (Allen, 21 NY2d at 406). The party seeking the disclosure is not required to show the information sought is indispensable to the prosecution or defense of the litigation, but rather that it bears on the controversy in such a way as it will assist the party in preparing for trial (see Allen, 21 NY2d at 406-407).

Under SCPA 1404 (4), either before or after objections are filed, any party to the probate proceeding may examine one or more attesting witnesses and the drafter of the instrument, and if the instrument contains an in terrorem clause, the party may also examine the nominated executors and the party offering the instrument for probate. The examinations may explore "all relevant matters which may be the basis of objections to the probate" (SCPA 1404 [4]), including the execution of the instrument, the testator's testamentary capacity, and whether the instrument is the result of undue influence or fraud perpetrated on the testator (see Matter of MacLeman, 9 Misc 3d 1119[A] [Sur Ct, Westchester County 2005]; Matter of Delisle, 149 AD2d 793, 794-795 [3d Dept 1989]). The party seeking the examinations shall have "all rights granted under article 31 of the civil practice law and rules with respect to document discovery" (SCPA 1404 [4]). Section 207.27 of the Uniform Rules for Surrogate's Court (22 NYCRR) provides that absent a showing of special circumstances, these examinations are generally limited in temporal scope to the period three years prior to the date of the instrument offered for probate and two years thereafter or the date of the testator's death, whichever is earlier. This is commonly referred to as the 3-2 rule or 3-2 period. This is not an inflexible rule and the court, in the exercise of its discretion, can extend that period upon a showing of special circumstances (see Matter of Kaufmann, 11 AD2d 759, 759-760 [1st Dept 1960]). Such special circumstances can include a scheme of fraud or a continuing course of conduct of undue influence supported by facts (see MacLeman, 9 Misc 3d 1119[A]; Matter of Partridge, 141 Misc 2d 159, 160 [Sur Ct, Rockland County 1988]).

SCPA 1404 (4) expands the scope of discovery for a propounded instrument with an in terrorem clause by allowing examinations of the nominated executors and proponents of the instrument. Such an instrument may warrant broader, more probing pre-objection discovery by a party who receives a bequest under that instrument but is adversely affected by its admission to probate. In that event, the party must weigh the likelihood of prevailing in a probate contest against the loss of the bequest should the challenge be unsuccessful. In Matter of Marshall, (11 Misc 3d 674, 677 [Sur Ct, Suffolk County 2005]), the court permitted a pre-objection examination of a nominated alternate executor under SCPA 1404 (4) noting that the "rationale for permitting the examination of executors in the first instance was to strike an appropriate balance between the testator's desire to avoid will contests by spurned beneficiaries and the right of those same beneficiaries to obtain sufficient information to make an intelligent decision as to whether to risk triggering the in terrorem clause." The Marshall court stated that when a respondent's claim is based on undue influence or fraud, "which by their nature tend to require circumstantial evidence, such preliminary inquiry becomes even more relevant" (11 Misc 3d at 677).

In terrorem clauses are enforceable (EPTL 3-3.5), but "are viewed with disfavor by the courts and are strictly construed" (Marshall, 11 Misc 3d at 677). The Marshall court observed that "[a]lthough seemingly counterintuitive, the expansion of permissible discovery in instances where in terrorem clauses exist, is actually intended to avoid needless contests by permitting potential objectants to make informed decisions concerning the merits of their claims" (11 Misc 3d at 678).

Petitioner claims that the motion is premised on speculation and suspicion. Petitioner misapprehends the showing required at this stage of the proceeding to support the relief requested. The moving papers raise issues as to the decedent's mental condition and Sheila's involvement with the preparation of decedent's 2011 instrument, the penultimate instrument, which has a similar dispositive scheme to the 2013 propounded instrument. Movants question whether the changes to the 2007 testamentary plan were based on decedent's medical condition and developing Alzheimer's disease and/or undue influence by petitioner. Sheila does not dispute that she, not Peter, initially informed the drafting attorney that Peter purportedly wished to exercise his powers of appointment over the family trusts by leaving them outright to her — a departure from his prior testamentary plan of leaving them in trust for Sheila's lifetime benefit with the remainder on her death being distributed to his issue and Sheila's issue. As set forth in the drafter's memorandum to the file, which Peter purportedly signed to allegedly evidence his intent, Sheila's conversation with the drafter occurred in-person outside Peter's presence, while the drafter reviewed with Sheila the latest draft of Peter's will. It appears it was only thereafter that the drafting attorney spoke with Peter — not in-person but over the telephone — about the proposed changes.

"It is impossible to define or describe with precision and exactness what is undue influence; what the quality and the extent of the power of one mind over another must be to make it undue, in the sense of the law, when exerted in making a will" (Rollwagen v Rollwagen, 63 NY 504, 519 [1876]). Claims of undue influence are often established through circumstantial evidence, and may include discovery regarding the testator's medical condition; whether the propounded instrument deviated from the testator's prior testamentary plan; whether the testator depended on the alleged influencer; and the nature of the testator's family relationships (see e.g. Rollwagen, 63 NY at 519; Matter of Po Jun Chin, 55 Misc 3d 1092 [Sur Ct, Queens County 2017]). In expanding the 3-2 period in Matter of Po Jun Chin, the court stated that transactions between the will proponents and the testator before and after the will was executed demonstrated a change in the testator's 1999 testamentary plan "and arguably, a potential course of conduct which could bear on the question whether undue influence existed" (55 Misc 3d at 1095). The evidence presented at this early stage of the proceeding, along with the presence of an in terrorem clause in the 2013 instrument, supports the granting of some of the relief the movants seek.

The court rejects the petitioner's suggestion that the requested discovery encroaches on "threshold privileges." Examinations of attorney drafters in probate proceedings occur routinely. Under CPLR 4503 (b), attorneys and their employees "shall be required to disclose information as to the preparation, execution or revocation of any will . . . or other relevant instrument" but shall not disclose any privileged communication under the statute "which would tend to disgrace the memory of the decedent" (CPLR 4503 [b]). Petitioner has not established movants' request implicates this narrow exception. Petitioner's opposition on this ground is therefore without merit.

Movants' Request to Expand the 3-2 Period

Based on the 2013 instrument offered for probate, the 3-2 period is from September 1, 2010 to September 1, 2015. Movants request that the period be expanded to begin on December 17, 2004 thereby permitting discovery about the 2007 instrument. Movants have established special circumstances warranting the limited extension of the 3-2 period to encompass the 2007 instrument, and accordingly, their motion to extend the 3-2 period is granted and the expanded period shall be from December 17, 2004 to September 1, 2015.

Movants' Request that Petitioner Produce the 2007 Instrument or Information as to its Whereabouts

Contrary to petitioner's assertions, a decedent's prior wills, even outside the scope of the 3-2 period, are discoverable (see Matter of Manoogian, NYLJ, Mar. 7, 2014 at 36; 2014 NYLJ LEXIS 5502 [Sur Ct, New York County 2014]; Matter of Muller, 138 Misc 2d 966, 968 [Sur Ct, Nassau County 1988]). In Muller, the court stated that discovery under SCPA 1404 encompasses "all matters relevant to potential objections" and thus "should be read to require production of decedent's prior wills and instructions as relevant to a potential objection of undue influence" (Muller, 138 Misc 2d at 968). Moreover, under SCPA 1401, the court may sua sponte, or in response to a petition by a proper party, compel the filing of a will of a decedent.

The petitioner and her counsel are directed to file with the court within 30 days of the date of this decision and order the original of the 2007 instrument should it be in their possession, custody or control. Should the petitioner or her counsel not possess or control the original 2007 instrument but have information as to the custodian or location of the instrument, then the petitioner's counsel is directed to provide that information to respondents' counsel, in writing, within 30 days of the date of this decision and order.

Movants' Request that Petitioner Produce Decedent's Other Prior Wills and Discovery Relating Thereto or Information as to the Whereabouts of Same

As stated above, the decedent's prior wills are discoverable thus entitling the movants to copies of those instruments. Within 30 days of the date of this decision and order, the petitioner is directed to provide the respondents' counsel with copies of the decedent's prior wills which are in her possession, custody or control, and information as to the custodian or location of other prior instruments which are not in her possession, custody or control. Respondents' request for discovery from the petitioner relating to wills other than the 2007 instrument is denied on this record at this time, without prejudice.

Movants' Request that, to the Extent Necessary, They May Seek Discovery from Third Parties Regarding Prior Wills and Discovery Relating Thereto

To the extent necessary, the respondents may use CPLR Article 31 discovery to obtain from third parties copies of decedent's wills which pre-date the 2007 instrument. The request for additional discovery relating to instruments pre-dating the 2007 instrument is denied as premature.

Movants' Request that Petitioner Produce Previously Requested Discovery Material in Her Possession Which is Now Discoverable

Should petitioner not produce previously requested discovery which is subject to production under this decision and order, respondents may request a conference with the court to address the issue. Based on this record, however, no further relief is granted at this time.

Movants' Request that Petitioner Cause to be Delivered to Respondents' Counsel Executed HIPAA Releases and Similar Releases

The respondents also seek a direction that Sheila execute and return HIPAA authorizations and other unspecified "releases" submitted to her within seven days of receipt. All parties should promptly respond to discovery requests. As no specific HIPAA authorization or release is the subject of this motion, no additional relief can be granted at this time.

This constitutes the decision and order of the court.

Counsel for the parties shall appear at the call of the calendar on September 23, 2026 at 9:30 a.m. and attend a conference with a member of the law department thereafter.

The court considered the following papers:

1. Notice of Motion, dated October 16, 2025, filed on behalf of respondents along with counsel's supporting affirmation, dated October 16, 2025, with exhibits;

2. Affirmation in opposition, dated October 31, 2025, by petitioner's counsel; and

3. Reply affirmation, dated November 18, 2025, in further support of respondents' motion

Dated: July 16, 2026

White Plains, New York

HON. BRANDON R. SALL

Westchester County Surrogate

FOOTNOTES

1.   Without expanding the 3-2 period, the time period would be September 1, 2010 to September 1, 2015. Accordingly the movants seek to enlarge the period by six years.

2.   Under the 2007 instrument, the assets of the family trusts are held in trust with Sheila receiving the net income and having a right to discretionary principal distributions. The respondents (including their issue) and Sheila's issue could also receive principal distributions in the trustee's discretion. The trust terminates on Sheila's death, with the remainder distributed to the respondents or their issue and Sheila's issue. Under the 2011 and 2013 instruments, the assets of the family trusts are distributed outright to Sheila.

3.   The 2007 instrument repeatedly uses the term "issue" and in Article Thirteenth defines "my issue and the issue of my wife SHEILA" as meaning his three children, Sheila's two children and the issue of all five children.

Brandon R. Sall, S.