In re the Probate of the Will of Kaufmann

11 A.D.2d 759, 202 N.Y.S.2d 423, 1960 N.Y. App. Div. LEXIS 8657

Opinion

— Appeal [2726] from order dated March 36, 1966, insofar as it denied contestants’ motion to extend the period of examination before trial and it limited said examination, dismissed as moot in the light of decision in Appeal No. 2721. Order [2721], dated May 11, 1966, insofar as it denied contestants’ motion to continue examination of proponent before trial, reversed, on the law and on the facts, without costs, and examination of proponent of the will allowed for the period commencing about September, 1948, when testator and proponent started living together, until April 18, 1959, the date of testator’s death. Special circumstances are demonstrated in this ease arising from the long continued personal relationship between the testator and the proponent, who is a stranger to the blood, to indicate that on the issues of testamentary capacity and undue influence affecting the execution of the will, an examination in full scope is warranted. The pragmatic rule (Matter of Frank, 165 Mise. 411, affd. 253 App. Div. 706) limiting such examinations to a period of three years before the execution of a will and two years after has been found useful in practice; but the rule itself recognized it was made for the “average ease” and had its own exceptions under special circumstances. In our view, this ease is such an exception. Concur — Breitel, J. P., Rabin, Valente and Bergan, JJ.