In Re the Estate of Constant

Appellate Division of the Supreme Court of New York

In Re the Estate of Constant

128 A.D.3d 419, 6 N.Y.S.3d 477

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 5, 2015

Docket15001 514A/12

StatusPublished

Cited by4 cases

This text of 128 A.D.3d 419 (In Re the Estate of Constant) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re the Estate of Constant, 128 A.D.3d 419, 6 N.Y.S.3d 477 (N.Y. Ct. App. 2015).

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Opinion

Order, Surrogate’s Court, Bronx County (Nelida MalaveGonzalez, S.), entered on or about June 27, 2014, which denied petitioner’s motion to expand discovery beyond the time permitted under 22 NYCRR 207.27, to permit depositions of the purported attorney draftsman and two attesting witnesses of an alleged 2006 will, to explain decedent’s state of mind and reasons for executing the 2010 will as decedent approached 100 years old, unanimously affirmed, without costs.

The court properly exercised its discretion in denying petitioner’s motion to expand the scope of discovery, as no special circumstances are presented in this case (22 NYCRR 207.27). The alleged 2006 will is not at issue in this probate proceeding, and, to the extent objectants are asserting that the decedent had been incapacitated since 2006, they will bear the burden of such proof. In any event, it is decedent’s capacity in 2010, when he executed the propounded will, that is at issue. Concur — Tom, J.R, Andrias, Saxe, DeGrasse and Kapnick, JJ.

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Order, Surrogate’s Court, Bronx County (Nelida MalaveGonzalez, S.), entered on or about June 27, 2014, which denied petitioner’s motion to expand discovery beyond the time permitted under 22 NYCRR 207.27, to permit depositions of the purported attorney draftsman and two attesting witnesses of an alleged 2006 will, to explain decedent’s state of mind and reasons for executing the 2010 will as decedent approached 100 years old, unanimously affirmed, without costs.

The court properly exercised its discretion in denying petitioner’s motion to expand the scope of discovery, as no special circumstances are presented in this case (22 NYCRR 207.27). The alleged 2006 will is not at issue in this probate proceeding, and, to the extent objectants are asserting that the decedent had been incapacitated since 2006, they will bear the burden of such proof. In any event, it is decedent’s capacity in 2010, when he executed the propounded will, that is at issue. Concur — Tom, J.R, Andrias, Saxe, DeGrasse and Kapnick, JJ.

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Bluebook (online)

128 A.D.3d 419, 6 N.Y.S.3d 477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-constant-nyappdiv-2015.

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