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Surrogate's Court, Sullivan County, New York.

Jackie FIDDLE, Plaintiff, v. The ESTATE OF Joseph FIDDLE, Respondent.

Decided: October 11, 2006

Zachary Kelson, Esq., Gerstman & Kelson, Monticello, attorney for plaintiff. Ivan Kalter, Esq., Kalter, Kaplan, and Zeiger, Woodbourne, attorney for respondent.

This matter comes on by motion of plaintiff following the suspension of a hearing pursuant to SCPA § 1404 held at the law office of respondent's attorney by agreement of the parties.

Plaintiff requests three substantive orders related to the examination of witnesses before resuming the hearing:

1.  To continue the 1404 hearing at the Sullivan County Courthouse under the supervision of the Surrogate Judge or other designee pursuant to SCPA § 2609(3)(a).

2. Permission to question witnesses regarding events prior to the three year period before the date the propounded instrument was executed, pursuant to 22 NYCRR § 207.27, because “special circumstances” exist that warrant an exception.

3. That Mr. Joseph Pond, a witness and the attorney who drafted the decedent's last three wills, fully produce all of his files relating to the three wills the last of which is the propounded will, including files dated prior to the three year period from the date the propounded instrument was executed.

Respondent submits affirmation in opposition.

Plaintiff submits reply.

Respondent submits sur-reply.

Respondent agrees with Plaintiff's first request.   Accordingly, plaintiff's first request, to have the 1404 examination continued at the courthouse under the supervision of the Surrogate Judge or designee, is granted on consent.

Respondent objects to the second and third requests because Plaintiff has neither asserted nor put forth any evidence of “special circumstances” to warrant an exception to surrogate's rule 22 NYCRR § 207.27.

Prior to the 1404 hearing plaintiff filed objections with the Surrogate's Court.

Technically speaking a 1404 hearing is not a hearing in the evidentiary sense.   It is actually a 1404 examination as per SCPA § 1404 and 22 NYCRR 207.27.

In 1404 examinations, witnesses must be produced before the court, SCPA § 1404(1), said examinations shall be held at the courthouse, 22 NYCRR 207.28, but may be supervised by the Surrogate Judge or his designee, SCPA § 2609(3)(a).

Plaintiff's second request, for permission to question witnesses prior to the three year period from the date the propounded instrument was executed, and the third request, for discovery of documents relative to the same time period, pursuant to special circumstances as required by 22 NYCRR 207.27 requires a more probing analysis since there is a scarcity of Surrogate decisions on these issues.

At first review, it would seem that whether special circumstances exist herein, as required by 22 NYCRR 207.27, is the issue for this court's determination.

However, before deciding whether special circumstances exist herein, this Court must first determine if 22 NYCRR 207.27 applies to a 1404 examination.

There are a number of cases where various Surrogates apply the Rule 207.27 three and two year time limitation to 1404 examinations without explanation.   See, i.e. Estate of MacLeman, 9 Misc.3d 1119(A), 2005 WL 2679677 (Surr. Ct., Westchester Cty., 2005);  Estate of Martin, 2003 N.Y. Slip Op. 50609(U), 2003 WL 1088227 (Surr. Ct., Nassau Cty., 2003);  Estate of Powers, N.Y.L.J., Vol. 226, Num. 39, August 24, 2001 (Surr. Ct., Westchester Cty., 2001);  Estate of Partridge, 141 Misc.2d 159, 532 N.Y.S.2d 814 (Surr. Ct., Rockland Cty., 1988).

One Surrogate has held, after analysis, that the three and two time limitation of Rule 207.27 applies to 1404 examinations and document production whether the examination is held prior to objections or after objections have been filed.  Estate of Giardina, N.Y.L.J., Vol. 221, Num. 113, June 15, 1999 (Surr. Ct., Nassau Cty., 1999).

22 NYCRR 207.27, commonly called the three and two rule limitation, states in pertinent part:

“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.”

(Emphasis added.)

The issue of what does the term “examination before trial” mean in the context of Rule 207.27 is controlling to this analysis.

The legal community commonly refers to an examination before trial as an EBT. It is a discovery devise under Article 31 of CPLR, which is applicable to most civil cases and to both 1404 examinations and Rule 207.27.

However, CPLR Article 31 provides that the discovery devise commonly called an EBT is, in actuality, a deposition upon oral questions.   See, CPLR 3102(a);  3106;  3107.

Thus, any argument that Rule 207.27 only applies to the legal community shorthand EBT is misplaced.   Since the term EBT is a misnomer, the words “examination before trial” in Rule 207.27 actually refers to an examination before a trial of any kind, civil or Surrogate.

 However, even though Rule 207.27 does apply to any examination before a trial generically, it only applies in 1404 examinations when there is a “contested probate proceeding in which objections to probate are made.”   See, 22 NYCRR 207.27.

This Court respectfully disagrees with the various court's and Estate of Giardina, infra that apply 207.27 in all circumstances to 1404 examinations.

This Court finds that the 207.27 rule only applies after a party has filed a formal objection to a probate proceeding, it does not apply prior to objections.   And, once a party has filed a formal objection, the rule limits discovery in examinations before trial to three years prior and two years beyond the creation date of the propounded instrument or the decedent's death, whichever is shorter.   Since 207.27 limits a litigant's right to discovery it must be narrowly construed.

SCPA § 1404(4) allows for broad discovery with respect to attesting witnesses in a probate proceeding, before or after filing objections to the probate of the will.   The original objective of § 1404 was “to enable a respondent to decide intelligently whether or not to file objections to probate.”   See, 1999 Recommendations of the Surrogate's Court Advisory Committee.

To this end, SCPA § 1404(4) specifically allows examination “․ as to all relevant matters which may be the basis of objections to the probate of the propounded instrument.” Estate of Delisle, 149 A.D.2d 793, 539 N.Y.S.2d 588 (3rd Dept., 1989).

Relevancy, materiality and usefulness are synonymous.   See, Estate of Schneier, 50 A.D.2d 715, 374 N.Y.S.2d 874 (App.Term, 4th Dept.1975).

“․ the trend has been to broaden the scope of discovery in connection with the SCPA 1404 examinations to encompass any area that might support any permissible objection to probate.   The rationale for such liberal disclosure is not only because the purpose of the SCPA 1404 examination is to ascertain the merit of any contemplated objection but also because the examining party will not have a second opportunity to examine the 1404 witnesses except by court order which will not be lightly granted ․”  SCPA 1404(4).  Estate of Roth, 2005 N.Y. Slip Op. 50521(U), 7 Misc.3d 1010(A), 2005 WL 856009 (Surr. Ct., Bronx Cty., 2005).

Plaintiff in this case had filed formal objections to the probate proceeding.   Thus, the Rule 207.27 three and two time limitation applies unless plaintiff can show special circumstances.

 In the case at bar, plaintiff alleges that the decedent, who died on August 31, 2003, had made three wills, all with different or differing provisions as to the disbursement of his estate.

The propounded will is dated November 7, 2002.   Allegedly, there are also prior wills dated August 22, 2001 and September 16, 1999.   The time span between the propounded will and the oldest will is three years and fifty-two days.   That is, just fifty-two days beyond the three and two rule.

In all three wills the decedent acknowledged, and made bequeaths to, his three daughters by a previous marriage.   In two of the three wills the decedent stated he was married to the plaintiff.   In two of the three wills he acknowledges having a son with plaintiff, his current wife, but denies having any children with plaintiff 1 in one of the three wills.   All three wills have provisions regarding decedent's estate that differ in size of the shares or listing different objects of his bounty including his declarations of paternity which are patently inconsistent.

This Court finds that plaintiff has shown special circumstances herein as required by Rule 207.27, applicable to 1404 examinations and document discovery since objections were formally filed with the Surrogate Court prior to notice for examinations under SCPA 1404.

Based upon the above, it is

ORDERED, that the 1404 examination shall resume at the Sullivan County Courthouse before the Surrogate Judge or his designee at a date to be agreed upon by all parties and the Court, and it is further

ORDERED, that plaintiff may examine the 1404 witnesses on any relevant matters which may form the basis for objections and which may have occurred more than three years prior to the date of the propounded will, and it is further

ORDERED, that witness and will draftsman, Joseph Pond, Esq., shall produce his entire files regarding the wills of decedent dated November 7, 2002, August 22, 2001 and September 16, 1999, and any other documents or items related to his representation of the decedent in other legal matters.

This shall constitute the Order of this Court.


1.   There has been no declaration or determination of paternity for the son in question.