Trust & Estates Law Blog

Challenging the Probate of a Last Will and Testament Your Right to a Hearing Before Objections

I have previously written in these pages about challenges to a Last Will and Testament.  I have said that such challenges are limited in nature, rare, and by no means commonly successful.  What do you do, however, if you think there may be a reason to challenge a Will, but you believe you do not have all the information you need to make the decision on a challenge?

If you are a party to the probate proceeding, you have a statutory right under Surrogates Court Procedure Act (SCPA) section 1404 to examine the witnesses to the Will and the person who wrote the Will (“the draftsperson”).

What does it mean to “examine the witnesses”?

The witnesses and draftsperson would be required to appear either in Court or at a deposition and give sworn testimony under oath.  Generally, the examinations are done in Court, but the presiding judge can permit the examinations to occur outside the courtroom at a sworn deposition.

What can you ask during the examinations?

The scope of your questions are generally considered to be fairly broad, as soon as  they are relevant to the probate of the Will.  For example, you could ask about the specifics of the signing ceremony where the witnesses were present.  Was there anyone else in the room?  Was the Will signer wearing their glasses?  Did the Will signer review the Will before signing?  Questions of that nature would all be likely deemed relevant by the presiding judge.

Are you entitled to any documents regarding the probate proceeding?

Yes.  The party conducting the examinations has a right to document discovery under Civil Practice Law and Rules (CPLR) Article 31.  Typically, you would seek copies of prior Wills, any notes related to the Will preparation, and anything else you could argue would be relevant to the examinations.

Can you examine anyone else under oath?

Yes.  If there is an in terrorem clause, you may examine the nominated executors and the proponents of the Will.  An in terrorem clause is a clause which would result in a beneficiary losing their gift under the Will if they were to challenge the Will.  In addition, you could examine potential additional witnesses upon the approval of the court.

What additional witnesses could the court approve of?

The court could potentially approve the examination of additional witnesses if it found them able to “provide information with respect to the validity of the will that is of substantial importance or relevance to a decision to file objections to the will.” (SCPA 1404(4)).

What are Objections?

Objections are formal written allegations that argue against the court admitting the proposed Will to probate.  The probate of the Will is usually accompanied by the issuance of Letters Testamentary to the nominated Executor.  If the Will is admitted to probate and Letters Testamentary issued to the Executor, then the administration of the decedent’s estate will commence.

When are Objections made?

Objections can be made before or after a SCPA 1404 examination occurs.  SCPA 1404 examinations are somewhat rare, but if they occur, the party who seeks the examinations is usually seeking information to see if Objections are appropriate to bring against the probate of the Will.

If SCPA 1404 examinations occur, what happens next?

If Objections have not already been brought, the court will likely provide some additional time (i.e. 10 days or two weeks) to allow the party who sought the examinations to decide whether or not to file Objections.  If no Objections are filed, then the probate of the Will likely occurs and Letters Testamentary will likely be issued to the Executor.

When would it make sense to request SCPA 1404 examinations?

You would be well advised to discuss the matter with an attorney experienced in estate administration.  Such an attorney could discuss with you what type of Objections could be made and whether SCPA 1404 examinations would be useful in making that decision.  Objections and SCPA 1404 examinations are not common, so you would want to obtain legal advice before going forward with such an effort.

If you have concerns about a Will being probated, a consultation with an experienced attorney will allow you to better understand the probate process and your legal rights.  If Objections or SCPA 1404 examinations are not appropriate, there may be other steps to ensure your rights with regard to the decedent’s estate are protected.

Matthew J. Dorsey, Esq. is a Shareholder with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his twenty-six years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at (518)584-5205, and

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