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

Appellate Division of the Supreme Court of the State of New York·Decided May 5, 2015·No. 15001 514A/12·Published·Cited by 4 cases

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.

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

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